76 N.Y.S. 188 | N.Y. App. Div. | 1902
The issue presented by the pleadings was whether the agreement •of settlement of April 9, 1895, between Lee, Higginson & Co. and the defendant gave to plaintiff’s assignor the right to receive from the General Electric Company the benefits of the agreement of November 8, 1893, and to any moneys which might be paid thereunder.
The shares were transferred “subject * * * to an agreement * * * dated November 8, 1893, concerning such preferred shares ; ” and thus it appears that both parties were entirely familiar with the agreement made with the General Electric Com
That seems the reasonable interpretation, and from the correspondence admitted on the trial it is conclusively shown that this was the. interpretation which the defendant himself adopted. . Thus, he replied to the General Electric Company on November 27,, 1895,, after receipt of the money, as follows : “ I beg to say that as I no-longer hold the shares I cannot sign the papers you mention and that I am holding the proceeds of the check for the benefit of Whom it may concern.” And thereafter he wrote the same comr pany, in reply to their repeated request for return of check, that-“I am * * * advised that I have, under the circumstances no-right to. deliver the amount except to the present holders
The circumstances under which the settlement agreement was
Reading the terms of the agreement made by defendant’s attorney, and ratified by the execution by defendant of the release as therein set forth, in the light of the facts disclosed by the correspondence and the interpretation placed upon the contract by the defendant himself, we think it appears that what was intended was more than a mere assignment of shares, and that under the agreement plaintiff’s assignor took the shares of Northwest Electric Company, not free and unlimited, but with the limitation imposed and the
The argument that plaintiff’s remedy is against the General Electric Company is not sound. That company paid the money in good faith to the person whom it supposed held the stock and without notice that defendant had parted with the stock. The wrong ■ party thus having received the money, and the plaintiff being without remedy as against the payer, it is. but equitable arid just that he ■ should recover the money which, under a mistake of fact, was paid to and received by the defendant.
• We think, therefore, that the judgment dismissing the complaint and the order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. .
Sic.