STEPHEN G. CLARKE, as Executor of and Trustee under the Last Will of JOHN A. BAGLEY, Deceased, Respondent,
JAMES R. GILMORE, Appellant, Impleaded with KATHARINE C. BAGLEY, as Executrix of and Trustee under the Last Will of JOHN A. BAGLEY, Deceased, Respondent, and JESSICA T. HILDICK, as Trustee under the Last Will of JOHN A. BAGLEY, Deceased, Defendant.
APPEAL by the defendant, James R. Gilmore, from an interlocutory judgment of the Supreme Court in favor of the plaintiff,
entered in the office of the clerk of the county of New York on the 3d day of October, 1911, upon the decision of the court rendered after a trial at the New York Special Term.
Charles Blandy, for the appellant.
Ernest G. Stevens, for the respondent Clarke.
On the 10th of July, 1899, the plaintiff and the defendants Bagley and Hildick (neé Wood), as trustees under the will of John A. Bagley, deceased, held 8,000 shares of the preferred stock of the Reno Oil Company, a Pennsylvania corporation. On that day they entered into a contract with the defendant Gilmore, which reads as follows:
'Memorandum of Agreement made and entered into this 10th day of July, 1899, between James R. Gilmore, of the Borough of Manhattan, City of New York, N.Y. , party of the first part, and Katharine C. Bagley, Stephen G. Clarke and Jessica T. Wood, as Executors and Trustees of the last will and testament of John A. Bagley, deceased, parties of the second part.
'WHEREAS the parties of the second part, as Executors aforesaid, are the owners and holders of eight thousand shares of the property preferred stock of the Reno Oil Company, a corporation organized and existing under and by virtue of the laws of the State of Pennsylvania, and
'WHEREAS the affairs of said company have been so managed that there is danger that the value of the said stock will be wholly destroyed, and
'WHEREAS the parties of the second part have no available funds to institute necessary legal proceedings to protect the value of said stock, and
'WHEREAS the party of the first part has agreed to take an assignment of the said stock and to institute proceedings at his own cost and expense, to protect the value of said stock, and if possible to realize and recover the value thereof, and
'WHEREAS the parties of the second part have duly assigned said eight thousand shares of stock to the party of the first part,
' Now, therefore, the party of the first part, in consideration of such assignment, does hereby agree to and with the parties of the second part, that he will institute and prosecute, at his own cost and expense, necessary legal proceedings to protect the value of said stock and to recover the fair value thereof and from and out of any moneys that he may recover, after deducting the amount of money actually disbursed by him, excepting for legal services, to pay over to the parties of the second part, an amount equal to the price paid for said stock by said John A. Bagley, deceased, which price it is hereby stipulated and agreed was $16,000 less amount of actual disbursements.
'It is Mutually Understood and Agreed that the party of the first part shall not involve the parties of the second part in any expense, ...