Cole v. Wendel

8 Johns. 116 | N.Y. Sup. Ct. | 1811

Spencer, J,

delivered the opinion of the court. The only question presented by the case is, whether it was competent to the plaintiff to explain, by parol, whether the 5 per cent. advanced on the shares, was to be on the sum then actually paid in, (which was 10 dollars on each share,) or on the nominal amount of the shares. The terms of the contract are equivocal, and the ambiguity is a latent one ; as such, and on the strictest principles, the circumstances of the case may be proved and taken into consideration, in determining how the S per cent, advance was to be calculated. (Peake's Evid. 112.)

There is, moreover, intrinsic evidence that the 5 per cent, advance was to be calculated on the nominal amount of the shares. The plaintiffs owed the defendant 667 dollars on a note; the defendant agreed to accept sixty shares, on each of which 10 dollars had been paid, to pay an advance of S per cent, deliver up the note, and pay the balance in cash; but if the 5l. per cent. was to be allowed on the 10 dollars, paid on each share, there would be no balance to be paid by the defendant, but the plaintiff would still remain in debt. It is evident, therefore, that the parties contemplated that the advance should be on the nominal amount of the shares.

Motion denied.