Three opinions having already been written in this case I shall content myself with a brief statement of the reasons which lead me to the conclusion that the judgment should be affirmed. It is apparent that the case of Stokes v. Stokes (148 N.Y. 708) cannot be given the effect claimed for it by the present appellant and accorded to it in the opinions which favor a reversal. The only question actually involved in that case was whether, under the circumstances proved, specific performance ought to be decreed. It arose upon the then defendant's counterclaim by which he sought to compel the plaintiff in that action to specifically perform the contract of August eighteenth by depositing $25,000 of bonds, in addition to the $155,000 already deposited with him. It was understood by the parties, when they entered into that contract, that William could probably purchase from Read his stock which consisted of 1,963 shares. That, he was unable to do. He was thus relieved from the investment of a large amount of money which would have been required for the purpose if he had been able to make the contemplated purchase. That the securities which he held were abundantly sufficient to indemnify him against any liability, actual or contingent, which then existed by reason of that contract, was obvious. Under those circumstances, this court held that specific performance ought not to be decreed, and that the General Term erred in reversing the judgment of the Special *Page 590 Term, which dismissed both the plaintiff's complaint and the defendant's counterclaim. Obviously this was upon the ground that the liability of William was less than was originally contemplated, and, hence, did not require the deposit of any additional security to completely indemnify him. Under the circumstances the discretion which rests in a court of equity in determining whether specific performance shall be granted or withheld, plainly authorized the court to refuse the decree sought. The right of specific performance rests in the judicial discretion of the court, and may be granted or withheld upon a consideration of all the circumstances and in the exercise of such discretion. (Seymour v. Delancey, 6 Johns. Ch. 222;Margraf v. Muir, 57 N.Y. 155; Miles v. Dover Furnace IronCo., 125 N.Y. 294, 297; Gotthelf v. Stranahan, 138 N.Y. 345,351; McPherson v. Schade, 149 N.Y. 16, 21; Heller v.Cohen, 154 N.Y. 299, 306.)
It is a well-established principle relating to this subject that specific performance will never be decreed where it would be inequitable. It is immaterial whether the fact that it is inequitable arises from the provisions of the contract, or from external facts or circumstances which affect the situation and relations of the parties, for in either case it may constitute a sufficient ground for a court of equity to withhold this peculiar relief, and to leave the parties to their legal remedy. (Seymour v. Delancy, 3 Cow. 445; Clarke v. Rochester,Lockport N. Falls R.R. Co., 18 Barb. 350; Peters v.Delaplaine, 49 N.Y. 362; Trustees of Columbia College v.Thacher, 87 N.Y. 311, 317; Murdfeldt v. N.Y., W.S. B.R.Co., 102 N.Y. 703; Day v. Hunt, 112 N.Y. 191, 195; Conger v. N.Y., W.S. B.R.R. Co., 120 N.Y. 29, 32; Baily v. DeCrespigny, L.R. [4 Q.B.] 180; Shrewsbury Birmingham RailwayCo. v. London N.W. Railway Co., 4 DeG., M. G., 115; 6 House of Lords Cases, 113; Wedgwood v. Adams, 6 Beav. 600; 8 id. 103.)
In reviewing the judgment in the first case, the General Term was not justified in reversing it, unless it appeared that the proof so clearly preponderated in favor of a conclusion *Page 591 adverse to that reached by the trial court that it could be said with reasonable certainty that it erred in its conclusion. (Baird v. Mayor, etc., 96 N.Y. 567; Lowery v. Erskine,113 N.Y. 52, 55; Weber v. Bridgman, 113 N.Y. 600, 607;Aldridge v. Aldridge, 120 N.Y. 614, 617; Devlin v.Greenwich Savings Bk., 125 N.Y. 756; P.I. Co. v. "Hopatcong" "Musconetcong," 127 N.Y. 212; Barnard v.Gantz, 140 N.Y. 253; Cook v. N.Y.E.R.R. Co., 144 N.Y. 117;Bloom v. Nat. Savings Loan Co., 152 N.Y. 119; Foster v.Bookwalter, 152 N.Y. 168.) There was no abuse of the discretion possessed by the trial court. In that case, as it was unnecessary, it would have been clearly inequitable to require the defendant to deposit the additional $25,000 in bonds, and, hence, the trial court was justified in dismissing the counterclaim, and the General Term was not authorized to reverse its determination. Therefore, this court properly reversed the decision of the General Term and directed judgment absolute for the defendant.
Thus, it is seen that the decision of this court in that case did not involve the validity or effect of the agreement between the parties, but only whether, under the circumstances proved, Edward should be required to specifically perform it by depositing the additional $25,000 of bonds. Whether the bonds in the possession of William might be held by him as collateral security for the purposes mentioned in the contract of August eighteenth, was not involved, and, therefore, the judgment in that case has no bearing upon the question now before us. It neither constituted an estoppel to the plaintiff's claim that he was entitled to hold the bonds in his hands for the liabilities mentioned in the agreement, nor was it proper evidence upon that subject. The rule in relation to the estoppel of judgments, as announced by Lord Chief Justice DE GREY in the Duchess ofKingston's case, was indorsed by this court in Stannard v.Hubbell (123 N.Y. 520, 528). It is as follows: "That neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within the jurisdiction, nor of any matter *Page 592 incidentally cognizable, nor of any matter to be inferred by argument from the judgment." It was said by this court in theStannard case that that rule had been uniformly accepted by the courts as an accurate statement of the law, and it was there held that where an estoppel is claimed in respect to some fact involved in a former action, it is only material, relevant and necessary facts decided in the former action that are conclusive in a second, and that a judgment does not operate as an estoppel as to immaterial or unessential facts, even though put in issue by the pleadings and directly decided. (Campbell v. Consalus,25 N.Y. 613; People ex rel. v. Johnson, 38 N.Y. 63;Woodgate v. Fleet, 44 N.Y. 1; Sweet v. Tuttle, 14 N.Y. 465. ) Again, in Springer v. Bien (128 N.Y. 99) it was held that, although a judgment had been entered in a former action, it did not prevent the relitigation of a fact litigated and found in such action, which was irrelevant to the issues therein, and did not enter into, and was not involved in, the final judgment. A judgment does not operate as an estoppel in a subsequent action between the parties, except as to such facts as are litigated and decided, and which have such a relation to the issue that their determination was necessary to the determination of that issue. (House v. Lockwood, 137 N.Y. 259.)
As we have seen in the trial of the former action, the only issue was whether, under the circumstances, specific performance should be decreed. Whether the securities already in the possession of William might be held by him as security for the liabilities mentioned in the agreement, was not at all material, or in any way necessary to the determination of that issue. It was not a relevant or necessary fact to be decided in that case. The decision of the court was only to the effect that as William was abundantly secured against loss by reason of any liability of Edward, direct or contingent, it would be inequitable to compel the latter to deposit the additional security provided for by the contract, and, hence, the court would not accord to him the peculiar relief of specific performance, but leave the parties to their legal remedy. Hence, *Page 593 it follows that the question whether William is entitled to hold the bonds in his possession as collateral security for the performance of the provisions of the contract, is an open one and not controlled by the decision in that case.
As the judgment in the former action between the parties was not conclusive against the right of William to hold the bonds remaining in his hands as security for all the claims provided for in the agreement of August eighteenth, I think they may be held for all the guaranties contained in that agreement, for the loan of the $32,000, for any obligation of the defendant connected with Read, including the two notes made by Read and indorsed or guaranteed by the defendant, amounting to $25,000, as well as against any foreclosure of the mortgage mentioned therein. That contract was not so far entire that the purchase of all of Read's nineteen hundred and sixty-three shares of stock by William was a condition precedent to the enforcement of the rights conferred upon him by the provisions of that agreement. Indeed, it is manifest from the contract itself that the parties contemplated the situation which actually arose as to the inability of William to purchase all the shares owned by Read. This is shown by the portion which states that he is about to purchase of Read the remainder of his stock, or a portionthereof, with the intent that the parties may be the owners of the whole, and by the further provision that William was to sell and transfer to Edward, at the price paid, one-half of the whole,or of such portion of the 1,963 shares as he might purchasefrom Read. Thus, the contract clearly shows that the parties intended that William should purchase the entire stock held by Read if it could be done, when the parties would together be the owners of the whole, but that he might be able to purchase only a portion was contemplated, as is plainly evinced by the language employed.
The consideration for the contract of August eighteenth was the mutual covenants and agreements of the parties. The provisions to be kept or performed by William have been performed by him, except so far as he has been unable to purchase *Page 594 all of the 1,963 shares of stock then owned by Read. He purchased all Read would sell. He could do no more. As we have already seen, the probable impossibility of purchasing all of this stock was understood by the parties when the agreement was made. But there was no provision that, in that event, the contract should become invalid or inoperative, or that it should not bind the parties as to its other provisions which could be performed. To say that there was a failure of the consideration for this contract is not, I think, correct. Nor do I understand that this court intended to hold that there was such a failure of the consideration as to render the contract inoperative. I think the condition which ultimately existed was not only contemplated by the parties, but that they intended that in case of the inability of William to purchase the Read stock, the remainder of the contract should continue in force. This seems manifest from the provisions and purpose of the agreement, which was to carry on the business of managing the hotel, restaurant and cafe connected with the Hoffman House, and for the management of the business of the corporation, as well as from the provision showing that the possibility of his being unable to purchase the whole of the Read stock was contemplated when the agreement was made.
It must be admitted, however, that, in the opinion in the first case, the judge writing took a somewhat different view of the provision as to the purchase of the Read stock. But the consideration of that question was merely incidental, and not at all important or material in determining the issue there presented, which was plainly stated by the learned judge as follows: "Ought specific performance, under the circumstances, to be now decreed?" A majority of the court was of the opinion that it ought not, and that was the sole question decided. As was said by VANN, J., in Colonial City T. Co. v. Kingston City R.R.Co. (154 N.Y. 495): "It was not our intention to decide any case but the one before us. * * * If, as sometimes happens, broader statements were made by way of argument or otherwise than were essential to the decision of the questions presented, they are the dicta of the writer of the opinion *Page 595 and not the decision of the court. A judicial opinion, like evidence, is only binding so far as it is relevant, and when it wanders from the point at issue it no longer has force as an official utterance." It seems to me that the only question decided in the former case was whether specific performance should be decreed, and that the question now before this court was not involved in that case. Hence, while I concur in the opinion of my brother HAIGHT, I am also of the opinion that, under the agreement between the parties, the plaintiff was entitled to hold the bonds in question to secure all the guaranties and obligations mentioned in its sixth paragraph, that the tender by Edward was, consequently, insufficient, and that the judgment appealed from should be affirmed.