230 A.D. 103 | N.Y. App. Div. | 1930
Plaintiff, a dealer in bank stocks, seeks reformation of a sales confirmation sent by mistake to defendant from which it erroneously appeared that ten shares of Chase National Bank stock had been sold to defendant at the price of $1,060 per share, when the actual sales price, as well as the prevailing market price, was $1,160 per share. Judgment for the loss sustained when defendant declined to accept and pay for the shares so purchased at $1,160 per share is also asked.
The judgment appealed from denies relief to plaintiff and awards judgment to defendant upon his counterclaim for damages claimed to have resulted through plaintiff’s failure to consummate the sale at the price of $1,060 per share, which was $100 below the market price. It appears without contradiction that there was an extensive over-the-counter market in this stock and for several days both before and after the transaction the price of the stock upon the market was in the neighborhood of $1,160 per share and that it had not been quoted or dealt in at or near the price of $1,060 per share. The price fluctuations of this stock appeared in the daily newspapers. Nevertheless, defendant testified that on March 11, 1929, when he telephoned plaintiff for a quotation, be was told that the price was $1,040 to $1,060 per share, which meant that plaintiff offered to buy at the lower or sell at the higher price; that he thereupon telephoned to another broker about the market and then
The judgment appealed from should be reversed, with costs, the counterclaim dismissed, and judgment directed reforming the writing mentioned in the complaint as therein demanded, and
McAvoy, Merrell and O’Malley, JJ., concur; Martin, J., dissents.
Judgment reversed, with costs, the counterclaim dismissed, and judgment directed reforming the writing mentioned in the complaint as therein demanded, and that plaintiff recover from the defendant the sum of $270.20, with interest thereon from March 13, 1929, with costs. Settle order on notice. The findings inconsistent with this determination should be reversed and such new findings made of facts proved upon the trial as are necessary to sustain the judgment hereby awarded.