Johnson v. Western Union Telegraph Co.

57 N.E.2d 721, 293 N.Y. 379, 1944 N.Y. LEXIS 1292, 33 A.F.T.R. (P-H) 285

• Court: New York Court of Appeals
• Decided: October 12, 1944
• Status: Published

Opinions

Desmond, J.

On December 14, 1881, Gold and Stock Telegraph Company, on whose behalf plaintiff brings this suit, leased all its assets, tangible and intangible, to defendant for a term of ninety-nine years from January 1, 1882. The agreed rental was a sum equal to 6% per year (i. e., $300,000 per year) on the par value of the lessor’s outstanding stock. That sum was to be paid quarter-annually, direct to the stockholders of the lessor. The lessee assumed and agreed to pay the whole of the lessor’s outstanding bonded indebtedness, with interest. As part of the transaction, defendant-lessee indorsed on lessor’s stock certificates a guarantee of payment of 6% annual dividends thereon. The lessor agreed to preserve its corporate existence and franchise and the lessee agreed to pay, in addition to rent, $2,500 per year to cover the expense of keeping lessor alive as a corporation. The scheme of the lease, as further described in subsequent paragraphs hereof, left the lessor with no property of any sort in its possession, no income except the agreed rental, and no actual money receipts from any source, since the rental installments were to go, for the whole ninety-nine years, direct to lessor’s stockholders. It is plain beyond controversy that the intent was that the lessor corporation, thus left without any funds, property or actual income, was to have all its obligations, of every sort, discharged during the term of the lease, by defendant as lessee. In 1913, a Federal income tax law was passed. Who, under this lease, is obligated to pay the Federal income taxes now being assessed annually against the lessor?

Prior to the leasing, Gold and Stock Telegraph Company had carried on á “ telegraph ticker service ”. The lease here under .scrutiny went beyond a mere letting of the physical properties theretofore used in that enterprise. The indenture listed, also, as leased assets, “ the telegraph lines and business ” of the lessor. Defendant was to have for itself all the revenues thereof. It agreed, at its own cost and expense, thereafter to “ operate the said lines and appurtenant facilities for business ” and to keep them in condition suitable for the transaction of the kind of business theretofore conducted by the lessor. Besides the rental provisions above alluded to, and covenants to which we shall refer hereafter, for keeping the property clear of taxes, incumbrances and liens, defendant promised in the lease to assume and pay “ all costs and expenses incurred in the operation and maintenance of the lines and business of the G. & S. T. Co. * * * ”. It was a complete, functioning business enterprise that was leased. At the end of the term, lessor was to have its properties back not only intact ánd in good condition, but “ as free from * * * encumbrance thereon as they were, when received ’ ’. In so many words, defendant covenanted to keep the whole property and business of Gold and Stock Telegraph Company “ clear from all incumbrances arising from tax, assessment or judgment liens ”.

Federal income taxes are now being assessed annually against this lessor and remain unpaid. Those delinquencies result in liens on the leased property. (U. S. Internal Revenue Code, § 3670; U. S. Code, tit. 26, § 3670.) Those liens may attach only to the lessor’s interest in the leased assets and may, as a practical matter, be enforcible by the Government only by a sale of the lessor’s reversionary interest, but they are liens just the same. (See 45 Yale Law Journal, pp. 183, 184.) As has been authoritatively determined in respect to this very lease, those income taxes on the rents cannot be collected by the United States from lessor’s stockholders nor can the lessee be required by the United States to withhold the taxes out of the rents. (Western Union Tel. Co. v. Commissioner of Int. Rev., 68 F. 2d 16; Gold & Stock Telegraph Co. v. Commissioner of Int. Rev., 83 F. 2d 465, certiorari denied 299 U. S. 564; see United States v. Western Union Telegraph Co., 50 F. 2d 102.) Furthermore, it is held that, under this form of lease, each of the lessor’s stockholders has an individual, direct claim against the lessee for his full and undiminished share of the annual rents; that share must be paid to the individual stockholder without interference by the lessor, the tax-collecting agency, or anyone else. (Western Union Tel. Co. v. Commissioner of Int. Rev., supra; United States v. Northwestern Telegraph Co., 83 F. 2d 468, 469, certiorari denied 299 U. S. 565; see Peabody v. Inter- borough Rapid Transit Co., 124 Misc. 801, affd. 213 App. Div. 857, affd. 240 N. Y. 708, also Rensselaer & S. R. Co. v. Irwin, 249 F. 726.) The guarantee indorsed on the stock certificates has the same effect. Since the agreed rent must go direct to lessor’s stockholders without deductions, how can lessee possibly fulfill its promise to keep the leased assets unaffected by liens or incumbrances, unless it pays these income taxes from its own funds?

Defendant’s reliance is on the first part of the Sixth paragraph of the lease. Therein it bound itself to pay “ all taxes and assessments which may be lawfully imposed .upon said property of the GL & S. T. Co., or any part thereof, by any state or municipal authorities ”. That language, says defendant, marks out the limit of its tax burden under the lease. If that were so, and if the lease said nothing else on the subject, the lessor’s Federal income taxes could not be charged against the lessee. Those income taxes are not taxes on “ property ” but are a levy in personam and they are of course, not imposed by “ state or municipal authorities ” (Brainard v. N. Y. C. R. R. Co., 242 N. Y. 125; Van Rensselaer v. Dennison, 8 Barb. 23). But the same Sixth paragraph of the lease contains also an explicit promise by defendant to “ keep the same [leased property] clear from all incumbrances arising from tax, assessment or judgment liens ’ ’. If State and municipal taxes alone had been under consideration, they would have been covered adequately by the express provision at the beginning of the Sixth paragraph, for the payment by the lessee, of such imposts. The later provision, in the same paragraph, as to keeping the property free from all tax or judgment liens must have been meant to be all-inclusive (see Schlafly v. D’Arcy, 1 F. 2d 297). Applicable here is the language of this court in a different situation: “ these words are sufficient to cover, and must have been-intended to cover, all possible forms of taxation ” (Ward v. Union Trust Co., 224 N. Y. 73, 79, quoting from Walker v. Whittemore, 112 Mass. 187).

We are mindful of the. general rule that a lessor must ordinarily pay his own income taxes on his rents. We have not overlooked the long line of cases rejecting demands of lessors for payment of such taxes by their lessees. But those were cases where the taxes which the lessee promised to pay were in one way or another specified in the lease, in terms" which excluded the idea of income taxes. (See, for instance, Boston & Providence R. R. v. Old Colony R. R., 269 Mass. 190; Stony Brook R. R. v. Boston & Maine R. R., 260 Mass. 379; Catawissa R. R. Co. v. Phila. & R. Ry. Co., 255 Penn. St. 269; Sharon Railway Co. v. Erie R. R. Co., 268 Penn. St. 396; Woodruff v. Oswego Starch Factory, 177 N. Y. 23.) All of the decisions just above cited turn on limiting language in the leases themselves. In each of those cases the lessee’s promise was not to pay all taxes or to remove all tax incumbrances but only to pay taxes specified. Likewise inapplicable here are the decisions which pass on language which amounts to specific promises to pay lessors’ income taxes or taxes imposed on the rents (e. g., Peart v. Phipps [1807], 4 Yeates 386 [Penn.] ; Suter v. Jordan Marsh Co., 225 Mass. 34; Phila. C. P. Ry. Co. v. Phila. R. T. Co., 263 Penn. St. 561; Wendel Foundation v. Moredall Realty Corp., 282 N. Y. 239). We are here enforcing covenants which with utter clarity and positiveness bind the lessee to keep the property free from all tax liens and to return it to the lessor in that unblemished state.

Defendant cites Brainard v. N. Y. C. R. R. Co. (supra), as holding that, to impose on a lessee liability for his lessor’s income taxes, the lease itself must refer to “ income taxes ”, in so many words. The Brainard decision goes to no such extreme. Under construction in that lawsuit was a contract of lease (or management) quite unlike the one we are construing here. The lessee in the Brainard case had covenanted to pay all taxes “ on the said road or property, or upon the said Mahoning Company [the lessor], by reason of its ownership thereof”, (p. 129-130.) This court held that the quoted language described only property taxes, not income taxes. There was in that lease no general, all-inclusive promise to take care of all tax liens. This court in the Brainard case did “ adopt ” from a Federal decision the rule that imposition On a lessee of a lessor’s income taxes is not justified “ unless the lease expressly provides for the payment of taxes on the income from rentals received under the lease”, (p. 132.) But the Brainard opinion does not say or mean that the income tax had to be mentioned by name. The holding of the case is that words which are commonly used only to describe property taxes cannot fairly be construed to include income taxes. If the very words “ income taxes ” had to be used, then it would be impossible to draw a covenant as to the payment of all taxes, now or in the future to be imposed. Taxes, like death, are certain, but no one knew in 1881, when this lease was drawn, what forms of taxation would be popular ninety-nine years thence. There was no legal impediment to an assumption by the parties of all the risks of changes in the tax laws. (See Ward v. Union Trust Co., 224 N. Y. 73, at p. 79, supra.) The lessee assumed the risk of new and larger taxes, the lessor took the chance that taxes would be reduced.

Our close examination of the particular language of this instrument does not mean that we are picking out words or phrases from a whole text. The very same result is reached when we seek out the general plan of the contract. That plan contemplated the turning over free and clear of liens, to the lessee, of all lessor’s property and its return in the same condition. It contemplated the constructive payment of the rent to the lessor but actual payment thereof in undiminished amount to lessor’s stockholders, with an absolute guarantee thereof running from the lessee to the stockholders and, finally, a stripping from the lessor of all funds, principal or income, and the assumption by the lessee of responsibility for all costs and expenses which ordinarily would be charged to the lessor and for the removal from the property of every tax or other lien and incumbrance. To say that such a scheme left the matter of possible income taxes suspended in the air till the long distant day of the lease’s end, is to accuse the parties of folly.

Argument is made, however, that the parties should not be held to have had Federal income taxes in contemplation, since no such taxes were being imposed in 1881. We do not see what difference it makes whether or not the parties had in mind that specific kind of governmental exaction, so long as the lease imposed on the lessee all. risk and burden of any and every kind of tax levy. Nor. can it fairly be said that income taxes were totally outside the range of vision of these contracting parties in 1881. Our present form of Federal income tax dates only from 1913, but income taxes were imposed by our national government as early as 1861. One of our own decisions tells us of a lease drawn in 1871 wherein the draftsman specifically excluded income taxes from the taxes to be borne by the lessee. (Rensselaer & Saratoga R. R. Co. v. D. & H. Co., 168 App. Div. 699, affd. 217 N. Y. 692, see discussion of the same lease in Rensselaer & S. R. Co. v. Irwin, 249 F. 726, supra.) There were income tax laws in the American colonies, in Great Britain beginning in 1798 and in various States of the Union long before this lease was signed. (See The Income Tax, by Seligman [The Macmillan Co., 1914].) New York State had a tax on rents as early as 1846. (See Woodruff v. Oswego Starch Factory, 177 N. Y. 23, supra, and Van Rensselaer v. Dennison, 8 Barb. 23, supra.) A prudent lessor and a careful lessee, scanning the horizon in 1881 for possible future taxes, could have descried an income tax among the shapes of things to come.

We do not here analyze the opinion of the Second Circuit Court of Appeals in United States v. Warren R. Co., 127 F. 2d 134, since the court itself, in its mandate in that case, was at .pains to point out that the decision was “ not res adjudícala ” as between lessors and lessee on the question of whether or not the lessee “ is obligated to bear and pay income taxes of such lessors ”. The holding of that case went only so far as to relieve the lessee from direct liability to the Federal government for the lessor’s income taxes.

This is not a case where the meaning of doubtful language has been conclusively determined, as a question of fact, by the two courts below. Here, as in the Brainard case (supra), the language of the tax covenant is so clear and definite as to admit, as matter of law, of one construction only. As Judge Pound wrote in the Brainard case (242 N. Y. at p. 133): “ the construction of a plain contract is for the court.”

Besides his demand that the lessee be required to pay the income taxes, plaintiff asks that defendant be required to segregate a certain sum derived from the sale by defendant of securities which are part of the leased assets. We are in agreement with the courts below, that defendant is under no duty so to segregate those funds.

The answer sets up alleged defenses as to the Statute of Limitations and as to ratification by lessor’s stockholders, etc. Since those defenses were not passed upon by the courts below, they cannot be passed on by us now. The case must, accordingly, go back for a new trial.

The judgments should be.reversed and a new trial granted, with costs to abide the event.