We believe the plaintiff failed to establish the cause of action asserted by him. The structure of his complaint does nоt make possible an easy compression of the allegations thereof. Hence we shall state his position in his оwn words. Included in his complaint are these allegations:
‘ ‘ First : That on or about April 4, 1950, the plaintiff was the owner of all the issued and outstanding preferred and common stock of Vogue-Ette, Inc., a domestic corporation.
“ Second: That on or about April 4, 1950, the plaintiff and defendant entered into an agreement wherein the plaintiff was to sell all his right, title and interest in and to the preferred and common stock of Vogue-Ette, Inc., a domestic corporation, to the defendant fоr the sum of $28,688.35 and the defendant agreed to pay the said $28,688.35 for the said stock of plaintiff in VogueEtte, Inc.
‘ ‘ Third : That the plaintiff duly performed all the conditions of said contract on his part to be performed and on April 4,1950 and thereafter was reаdy, willing and able to transfer all his
‘ ‘ Fourth : That at that time the dеfendant refused to accept the said stock or to pay the sum of $28,688.35 pursuant to his agreement.
“ Fifth : That the said Yogue-Ette, Inc., was a closed corporation, and there was no market for the sale of the said stock of the plaintiff, of which facts defendant was aware.
“ Sixth: That as a result of defendant’s aforesaid breach of contract, plaintiff wаs forced to liquidate the assets of the said Yogue-Ette, Inc.
“ Seventh : That as a result of defendant’s aforesaid breach of contract, the plaintiff was caused damage in the sum of Ten Thousand ($10,000.00) Dollars.”
The answer of the defendant denies the whole complaint.
The following facts are undisputed: On April 4, 1950, thе parties and their attorneys met at the office of the plaintiff’s attorney for the purpose of entering into a written contract whereby the plaintiff would agree to sell and the defendant would agree to purchase the stock оf a New York corporation all the shares of which were owned by the plaintiff. On that occasion, the plaintiff’s attorney produced duplicate typewritten originals of such a contract and the plaintiff signed one while the defendаnt signed another. The purchase price was stated to be $28,688.35 — the book value of the stock. A check for that sum was tеndered by the defendant but was refused by the plaintiff who demanded a certified check. In that state of the matter, the parties agreed to postpone completion of the transaction until the next day and thereupon each party picked up the writing that had been signed by him and went away. When they met again the next day, the defendant said he had changеd his mind and would not execute any contract. The attorney for the plaintiff then requested return of the typewritten instrument which hаd been delivered to the defendant the day before and that document was handed over by the defendant’s attorney after he had torn off the signature of his client.
This action was tried before Official Beferee Frederick P. Close who madе the following finding: “ There is no evidence in this case that either the defendant or his attorney ever deliv
On aрpeal by the plaintiff to the Appellate Division, the judgment granted to the defendant at the trial was reversed on the lаw and the facts and all “ inconsistent ” findings of fact and conclusions of law made by Judge Close were set aside. The Appellate Division said: “ In our opinion the proof establishes that there was a valid and binding oral agreement entered into by thе parties upon which their minds met in all respects; and failure to deliver a signed copy of the writing setting forth the terms of that agreement cannot defeat its enforcement.” (
Of course, if the parties intended to be bound by an oral agreement, a mere failure to reduce their promises to writing would be immaterial. (Pratt v. Hudson Riv. R. R. Co.,
There remains the question whether we cаn grant judgment for the defendant on the present record. The finding by Judge Close that there had been no delivery of the contract was not specifically reversed by the Appellate Division. The order of that court does indeed purport tо reverse all findings of Judge Close that are inconsistent with its decision but the decision, instead of making a finding contrary to the finding of Judge Close on the issue of delivery, treats that issue as being immaterial. This state of the record requires us to presume that the
Even so, we need not on that account remit this case to the Appellate Division for determination of that question of fact (see Civ. Prac. Act, § 606). For there is no evidence that would support a finding of a delivery of the written contract and, that being so, the defendant is entitled to judgment dismissing the complaint (Matter of Case,
The judgment of the Appellate Division should be reversed, and that of the Supreme Court affirmed, with costs in this court and in the Appellate Division.
Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.? concur.
Judgment accordingly.