his conduct as a director of Fulton); that they relied on his conduct; that they changed their position in any manner relying on such conduct; that the default would not have occurred but for their reliance; or that they have suffered any detriment ensuing from such reliance or change or position.
Defendants argue that acceleration should be denied because the dissolution of Fulton and the assumption of its liabilities by Allied which they contend is financially stronger then Fulton did not injury Plaintiffs but rather enhanced their position. In so arguing the Defendants ask this Court to substitute the Court's judgment for the judgment of the Plaintiffs as to the relative financial strength of Allied as against that of Fulton, and to deprive Plaintiffs of an election given them by the clear unambiguous language of the contract to which all parties to the contract willingly consented. In Graf v. Hope Building Corporation, 254 N.Y. 1, 171 N.E. 884; 70 A.L.R. 984, the leading case in New York on this point, the Court, confronted by a similar argument where the default was minor and inadvertent and the mortgage not adversely affected thereby, reversed a lower court decision enjoying acceleration, saying:
'Plaintiffs may be ungenerous, but generosity is a voluntary attribute and cannot be enforced even by a chancellor. Forbearance is a quality which under the circumstance of this case is likewise free from coercion. Here there is no penalty, no forfeiture (citing cases), nothing except a covenant fair on its face to which both parties willingly consented. It is neither oppressive nor unconscionable. * * * We are not at liberty to revise while professing to construe. * * * Our guide must be the precedents prevailing since courts of equity were established in this state. Stability of contract obligations must be not be undermined by judicial sympathy'.
See also First National Stores Inc. v. Yellowstone Shopping Center, 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868.
The Graf case involved a default that was minor, inadvertent and reasonably excusable. It cannot be this case was deliberate. It cannot be said that the Defendants were unaware of the provisions of a contract to which Continental was a party, of which Fulton was guarantor, and which Allied assumed by contract. While it can be said that equity abhors a forfeiture, it has often been held that acceleration is not a penalty or forfeiture. Graf v. Hope Building Corp., supra; Jacobson v. McClanahan, 43 Wash.2d 751, 264 P.2d 253; Albertina Realty Company v. Rosbro Realty Corporation, 258 N.Y. 472, 180 N.E. 176; Mitchell v. Federal Land Bank of St. Louis, 206 Ark. 253, 174 S.W.2d 671; United Benefit Life Insurance Co. v. Holman, 177 Neb. 682, 130 N.W.2d 593; Jaarda v. Van Ommen, 265 Mich. 673, 252 N.W. 485; Luke v. Patterson, 192 Okl. 631, 139 P.2d 175; Fant v. Thomas, 131 Va. 38, 108 S.E. 847; Federal Land Bank of Omaha v. Wilmarth, 218 Iowa 339, 252 N.W. 507. Moreover, equity will not aid the intentional wrongdoer. United States v. Forness, (2nd Cir.) 125 F.2d 928.
Plaintiff also seek a declaratory judgment construing certain provisions of the 1964 Purchase Agreement relating to the contingent payments to be made following default and acceleration. Section 3(n) of the Purchase Agreement provides that in the event of default and acceleration, Plaintiffs are entitled to be paid the contingent payments in respect of Continental's earnings for the year in which the default occurs and for subsequent years.
The defendants contend that no further payments should be made based upon earnings of Continental until payments, calculated cumulatively on the basis of Continental's earnings from inception of the contract, would have aggregated one million dollars (the guaranteed amount). They base their contention on a subsequent provision of the Agreement, Section 3(r).
They argue that the Court should place a construction on Section 3(r) that would give rise to a conflict between Section 3(r) and Section 3(n).
We find no ambiguity in the provision of Section 3(r). It is apparent that Section 3(r) was intended to express a limitation on payments to be made in the absence of a default and acceleration. The provisions of Section 3(n), quoted in Footnote 2, are clear and unambiguous and govern the rights between the parties following default and acceleration. This Court has no right to nullify the unambiguous provisions of Section 3(n) by placing on another section a construction that will give rise to a conflict between the two provisions. The rule is stated in 10 N.Y.Jur. (Contracts), Section 214, p. 125, wherein it is stated:
'It is the duty of the court, where there is an apparent repugnancy between two clauses of a contract, to reconcile them, if possible, so as to give effect to all the provisions of the contract. Thus, it is the province of the court to find harmony if possible between apparently conflicting provisions.'
See also 17 Am.Jur.2d, Section 267, p. 673; Fox Film Corp. v. Hirschman, 122 Misc. 354, 303 N.Y.S. 854, aff'd 212 App.Div. 837, 207 N.Y.S. 838; In Re Brooklyn Trust Company, 163 Misc. 117, 295 N.Y.S. 1007; Southland Royalty Co. v. Pan American Petroleum (Tex.Sup.Ct), 378 S.W.2d 50.
We find no ambiguity in either Section 3(r) or Section 3(n), nor do we find a conflict between them. Plaintiff are entitled to a declaratory judgment as prayed.
We find no genuine issue as to any material fact except the amount of attorneys' fees which Plaintiffs are entitled to recover pursuant to provision of the Purchase Agreement providing for the enforcement of any right or covenant provided in the Purchase Agreement.
Plaintiffs introduced the testimony of three leading attorneys of the Dallas Bar. All three were past presidents of the Dallas Bar Association; one is the president elect of the Texas Bar Association. Each of the witnesses testified as to his qualifications and expressed his opinion as to a reasonable attorney's fee for legal services rendered in enforcement of the Purchase Agreement as described in the testimony of a member of the law firm representing Plaintiffs. The opinions of the witnesses ranged from $ 125,000 to $ 168,000. We find $ 125,000 to be a reasonable attorney's fee.
Summary Judgment in favor of the Plaintiffs and judgment for $ 125,000 attorney's fees may be entered in accordance herewith.