Soparge v. Rosenblatt

36 A.D.2d 174, 319 N.Y.S.2d 466, 1971 N.Y. App. Div. LEXIS 4421

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1971
• Status: Published

Opinions

Steuer, J.

Plaintiff is a Swiss corporation. Defendants are individuals who are the principals of a corporation called The Fidelity Group, Ltd. (hereinafter Fidelity).

Plaintiff corporation entered into an agreement on April 17, 1969, with Fidelity to purchase 100,000 shares of Fidelity for $250,000. The price was paid. Plaintiff, however, bargained for and received two protective measures which were the subject of two different agreements, all simultaneously executed. One agreement provided that the seller would complete a registration of the stock with the Securities and Exchange Commission. If this registration was not complete by December 31, 1969, the buyer would have an option to tender the stock back. The buyer was given 30 days after December 31, 1969, to exercise this option. If the option was exercised, the entire transaction was to be converted into a loan from plaintiff to Fidelity of $250,000, payable June 1, 1970, with interest at 9½%. In that event also, a promissory note given pursuant to the other agreement and described below was to be surrendered and Fidelity was to give a new note, payable June 1, 1970, and bearing 9½% interest.

The second agreement provided that Fidelity was to take over all the assets of a certain subsidiary and that when this was accomplished the defendants warranted that Fidelity would have assets of at least $320,000, exclusive of the $250,000 paid to it by plaintiff. It contained a further agreement to submit an audit by Price Waterhouse & Co. showing this ,to be its condition, which audit was to be delivered to plaintiff by defendants within 90 days. If the audit was not supplied on the expiration of the 90 days, a promissory note executed at the same time

* would be payable on sight. The note in question is dated April 17, 1969, and promises to pay $250,000 with interest at 9½% on sight. It is signed by Fidelity and guaranteed by the defendants.

The Price Waterhouse audit was never delivered. Nor did plaintiff ever exercise the option to retender. Suit is on the guarantee of the note. Special Term saw no defense, and neither do we.

It is argued that the defendants, being the principal obligors, may plead the defense of usury. The difficulty with this contention is that beyond cavil they are not. The entire transaction is that the sale was to be rescinded, at the buyer’s option, if certain conditions were not met. One of those conditions was that the defendants would deliver an audit. If they did not the corporation would refund the purchase price with interest. The defendants guaranteed that the corporation would do this. Beyond this they made no actionable promise to do anything. The delivery of the audit would defeat the obligation of the note; the failure to deliver the audit would have no other consequence.

The dissent refers to the failure of the plaintiff to exercise the option to retender. It should be obvious that plaintiff had two methods of getting its money back, each dependent on different conditions. Even if both were open to it, the choice was its as to which to select.

Order and judgment entered, respectively, July 15, 1970, and 'September 10, 1970, should be affirmed with costs to respondent. Appeal from order dated July 30, 1970 denying reargument should be dismissed without costs.

This is the note mentioned above in connection with the option agreement.