204 A.D. 487 | N.Y. App. Div. | 1923
The action was brought to recover the purchase price of certain stock. It is alleged that the. plaintiff and defendant entered into a written contract, wherein the plaintiff agreed to sell and the defendant agreed to purchase from the plaintiff certain shares of stock for the sum of $15,000; that the plaintiff duly tendered the stock to the defendant and demanded that the defendant accept the stock and pay for the same, which the defendant refused to do; that the stock cannot readily be resold for a reasonable price; and that there is not an available market for the sale of said stock.
The answer denies the material allegations of the complaint. The affidavit of the plaintiff in support of his motion sets forth, as the agreement upon which the cause of action is based, the following letter written upon the letterhead of the United States High Speed Steel and Tool Corporation under date of December 7, 1920:
“Albert N. Hallgarten, Esq.,
“ 71 Central Park West,
“ New York City: .
“ My dear Hallgarten. — ■ Confirming my conversation with you, I hereby agree to repurchase from you three hundred seventyfiye (375) shares of the capital stock of the U. S. High Speed Steel & Tool Corporation, which you now hold for the sum of $15,000 together with interest, and undertake to endeavor to pay for same on or before April 1st, 1921.
“ Yours very truly,
“(Signed) JEAN WOLKENSTEIN.”
Mr. Justice Clarke also (at p. 722) said: “ In Joseph v. Sulzberger (136 App. Div. 499), this court said that ‘ as the case stood, *' * * the only contract which had been proven * * * was an agreement on the part of defendant that he would purchase and carry so much of the * * * stock as could be procured, and that such stock should be divided pro rata between the parties to the agreement, but no agreement had been shown on the part of plaintiff * * * that [he] would at any time take his pro rata share of such stock and pay his proportion of the cost and carrying charges. Such an agreement was wholly unilateral and involved no obligation on plaintiff’s part which the defendant could have enforced. There was no consideration to support-defendant’s promise, and it cannot be enforced.’ ”
“ Dear Sir.— Regarding my agreement to reimburse your investment in the stock of the U. S. High Speed Steel & Tool Corporation, I regret very much that owing to the poor conditions of business in general, I have not been able to take care of this matter before this. It is, however, my firm belief that within the next sixty days I could work out a plan of reimbursement which will appeal to you and I herewith pledge myself to do so. The amount invested by you is $15,000.00 plus interest until paid in full.”
This letter, it is to be noted, is not an offer to carry out the original agreement to repurchase the stock, but an expression of a belief that he could work out some plan to reimburse the plaintiff for his investment in the stock, other than by repurchase, which would appeal to the plaintiff. There is nothing in this letter which supplies the defect in the original that plaintiff had not obligated himself to sell. At most it shows that defendant, for some reason which does not appear, felt under an obligation on his part to reimburse the plaintiff for his investment in the stock. Nowhere does it appear in these papers that on any specified date the plaintiff definitely showed his acceptance of the proposition by a formal tender of the stock. If he did, that might show a cause of action not on the written agreement of December 7, 1920, but on the proposition of that date accepted by the plaintiff on the date of the tender when he committed himself to the sale.
Rule 113 of the Rules of Civil Practice explicitly provides: “ The answer may be struck out and judgment entered thereon on motion, and the affidavit of the plaintiff or of any other person having knowledge of the facts, verifying the cause of action.” Which means that the facts stated in the affidavit of the plaintiff or other person having knowledge of them who would be competent to testify to the facts upon the trial, must prove the cause of action stated in the complaint to be true. It is not enough to show that there might be a
It is doubtful whether the plaintiff has set forth facts sufficient to show that he could recover for the price and if a valid agreement to sell had been shown, whether his action should not have been for damages for non-acceptance. With the view that we take of the failure of the plaintiff to prove the written contract alleged in the complaint, it is unnecessary to consider this question.
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Clarice, P. J., Merrell, Finch and McAvoy, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.