97 N.Y.S. 1091 | N.Y. App. Div. | 1906
To the original complaint in this action the defendant demurred, which demurrer was sustained by this court (100 App. Div. 427). In pursuance of the leave granted the plaintiff amended the complaint, to which the defendant again demurred, which demurrer was overruled, and -the sufficiency of the amended complaint is now before us.
The action is brought upon a contract, a copy of which is annexed to the complaint. By that contract the defendant was the party of the first part and the plaintiff the party of the second part. It recites "that “ It is the mutual desire of the parties hereto that the securities of the United States Shipbuilding Company shall be sold to the best advantage, both parties being interested in same; ” that a selling syndicate had been formed to arrange for such sales, and for other purposes, under an agreement providing for the deposit of all of said securities of the United States Shipbuilding Company, except those of the plaintiff, with the defendant, for such purposes, and that both parties would in good faith co-operate with the said syndicate in furthering such object and that the agreement was intended to be an aid to the same. It was then agreed that the
The ■ agreement further provides that the defendant is accorded the exclusive right, to sell the said securities of the plaintiff during the period of the agreement, and that the defendant shall have the
In construing this agreement, in connection with the allegations of the original complaint, this court held : “ It is clear that under the contract alleged in the complaint the defendant had no right to become the purchaser of these securities. It undertook to sell the same and was bound to sell for the best price that could be obtained, and if a higher price than that named in the agreement had. been received upon their sale the defendant would have been required to account for the same to the plaintiff, and its obligation under the contract would not have been satisfied by the mere payment of the sum mentioned in the complaint. * * * The cause of action, if any, alleged was not á breach of a covenant to pay a certain sum of money,- but to perform a certain duty, namely, to sell these securities, and a covenant that they would realize a certain sum at least. There were no allegations whatever contained in this complaint tending to show that by reason of the breach of this covenant of sale, the plaintiff has suffered any damage whatever.” (100 App. Div. 429.)
Accepting this construction of the contract,', as we must on this appeal-, the -question is whether the plaintiff has now alleged facts which show that by reason of the failure of the defendant to sell theke securities witliin the year, the plaintiff has sustained damage. There can be no question but that under this agreement the defendant agreed to sell these securities, owned by the plaintiff, within one year from the date of the agreement at a price not less than that specified therein,, and undertook that the plaintiff should receive at the end of the year the price specified. The .complaint alleges that at the time of the making of this agreement the securities themselves were not actually engraved and made out, but that
It is a familiar rule that where a contract and a breach thereof by the defendant is alleged, the plaintiff is- at least "entitled to Bomb nal damages; and although a complaint should fail to allege damages, the" plaintiff being entitled to nominal.damages, the complaint. ■is not demurrable. "It- is in substance alleged that on the 25th day of August, 1903, the securities' which the defendant undertook to sell at a price named had become valueless, and that thereby the'
I think that the complaint set forth a gopd cause of action and that the demurrer was properly overruled. ' .
It follows that the judgment appealed from should be affirmed, with costs, with leave to the defendant to withdraw the demurrer and answer 'within twenty days on payment' of costs in this court and in the court-below. ;
■ 'O’Brien, P.J., Patterson,.Laughlin and Clarke,' JJ., concurred.
Judgment affirmed, with costs, with leave to defendant to withr draw demurrer and to answer on payment of costs in this court and in the .court below. Order filed. ■