25 N.Y.S. 305 | N.Y. Sup. Ct. | 1893
At the close of the trial the plaintiff asked the court to direct a verdict in his favor and the defendant moved that a verdict be directed in his favor. The court granted the plaintiff’s motion and the defendant excepted, and thereupon the defendant’s exceptions
This action was brought on a promissory note, of which the following is a copy:
$5,027.50 New York, March 14,1890.
Fifteen days (without grace) after date I promise to pay to the order of Sir Roderick W. Cameron .... Five thousand and twenty-seven ^ dollars at Hanover National Bank, New York. Value received.
C. H. Tompkins.
Due March 29, 1890.
The defendant admitted the making, delivery and nonpayment of the note, and alleged that it was given in consideration of an oral agreement between the litigants, that the defendant would on March 29, 1890 (the date when the note fell due), purchase of the- plaintiff certain shares of stock on delivery of the certificates properly signed, which, it is alleged, the plaintiff did not do, and that the oral agreement was void under the Statute of Frauds, and the note was without consideration. This note arises out of the following transaction : The defendant was the owner of shares, or was engaged in procuring subscriptions for unissued shares of the Idaho Mining & Irrigation Company, a domestic corporation, and on November 18, 1889, the plaintiff acquired from or through the defendant 784 shares of the stock for $5,000, and on the same day a certificate for 484 shares was issued to R. W. Cameron & Company, and another certificate for 300 shares to R. McLeod Cameron, the plaintiff’s son. The agreed price of the shares was paid on or about the date of the certificates. In January, 1890, the defendant orally agreed that he would at some future date take back the shares and repay the purchase price.
On January 24, 1890, the plaintiff wrote the defendant as follows:
*439 “ R. W. Cameron & Co.,
“ 23 South William Street,
“ New York, January 24, 1890.
“ General C. W. Tompkins :
“ DEAR General :—Agreeably with your considerate promise to relieve me of my subscription to the Idaho Irrigation Co., I ask you to make an entry of it in your Journal and kindly write me a reply, naming a date on which you will repay me the amount. I do not seek any interest on the amount paid, but if you will include my son’s subscription also it would be a favor.
“Your proposition was 30 days from the 7th instant, but if you prefer to extend the time you can make it from this date. I am,
“ Faithfully yours,
“ R. W. Cameron.”
The defendant received the letter and endorsed thereon “ Replied Jan. 30, 1890, agreeing to take stock by Feb’y. 24.” The following is a copy of the defendant’s answer :
“No 15 Cortlandt Street,
“ New York, Jan’y. 30, 1890.
“ Dear Sir Roderick :—I beg to acknowledge your favor of 24th inst., and in reply to state that I will undertake to accede to your request to relieve you and your son of your subscriptions to the stock of the Idaho Mining & Irrigation Co. on or before Feby. 24th, 1890.
“ Very truly yours,
“ C. H. Tompkins.
“ Sir Roderick Cameron.”
The shares were not taken back on February 24, 1890, and other conversations were had on the subject between that date and March 14, 1890, when the parties met and the note in suit was executed and delivered. The certificates for the shares were not present when the note was executed, and have never been delivered to the defendant,
“ § 3. Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless,
“ 1. A note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby: or,
“ 2. Unless the buyer shall accept and receive part of such goods, or the evidence, or some of them, of such things in action : or,
“ 3. Unless the buyer shall at the time pay some part of the purchase money.’’
A contract to sell shares of stock in a private corporation is within the third section of the Statute of Frauds of the State of New York (Johnson v. Mulry, 4 Robt. 401 ; Affd. 51 N. Y. 634; Baltzen v. Nicolay, 53 Id. 467, 470; Brownson v. Chapman, 63 Id. 625 ; Dos Passos S. & S. 765 Cook S. & S. 339; Reed St. Fr. 234).
The defendant did not accept the certificates for all or any of the shares, nor were they or any of them assigned to him at the date of the agreement to sell, nor at any time thereafter; nor were they or any of them transferred to him on the books of the corporation and no part of the purchase money was paid by him. The contract is not valid under the second or third subdivision of the section, and the defendant cannot be held liable to pay for the shares unless there is a sufficient note or memorandum in writing to satisfy the requirements of the first subdivision. The only memoranda relating to the sale which were introduced in evidence are the letters before quoted and the note on whi.ch the action was brought. The letters referred to each other and may be read together, but it
As before stated the price at which the shares were sold is not disclosed by the memoranda, which is a material provision of a contract for the sale of goods or choses in action.
In case goods or choses in action are sold at an agreed price of fifty dollars or more, the memorandum of sale must disclose the price at which sold in order to satisfy the requirements of the third section of Statute of Frauds (Stocker v. Partridge, 2 Robt. 193 ; German v. Machin, 6 Paige, 288-292; Newberry v. Wall, 65 N. Y. 484-488 ; Stone v. Browning, 68 Id. 598-604; Williams v. Morris, 95 U. S. 444-455; Smith v. Arnold, 5 Mason, C. C. 414; Johnson v. Buck, 35 N.J. Law, 338-349, Welsh v. Bayard,
The contract proved, which was the consideration for the defendant’s promise, was void under the Statute of Frauds, and the plaintiff under the evidence contained in this record was not entitled to recover.
The answer contains this allegation: “ Defendant further alleges that the plaintiff did not March 29, 1890, demand of defendant that defendant make such purchase, and that plaintiff did not on said day tender to defendant said shares of stock or the certificate or certificates by said corporation theretofore issued for and representing said shares and then held by plaintiff, and that plaintiff did not on said day offer to deliver said certificate or certificates to defendant properly endorsed "for transfer.”
This allegation is contained in the defendant’s second defense. The plaintiff served a reply which contains the following denial: “ The plaintiff denies each and every allegation contained in the defendant’s second and separate defense, the counterclaim herein, except that portion thereof wherein defendant alleges that on March 29, 1890, plaintiff did not demand ‘ of defendant that defendant make such purchase, and that plaintiff did not on said day tender to defendant said shares of stock or the certificate or certificates of said corporation theretofore issued for and representing said shares, and then held by plaintiff, and that plaintiff did not on said day
On the trial the plaintiff was permitted to prove that he tendered the certificates for the shares at the Hanover National Bank, March 29, 1890, when the note fell due and was presented for payment. The defendant objected to this testimony on the ground that it contradicted the reply, which objection was overruled and an. exception was taken.. The plaintiff did not ask to amend his reply, nor that he be relieved from his admission. The defendant had the right to rely on this admission, and he was under no obligation to be prepared with evidence to meet this question. The reception of this testimony was error.
The defendant’s exceptions must be sustained, and the verdict set aside and a new trial granted, with costs to the defendant, to abide the event.
Concur, C. H. V. B., A. B. P.
