2 N.Y.S. 205 | N.Y. Sup. Ct. | 1888
Dissenting Opinion
(dissenting.) The action was for the recovery of damages for the non-performance of a contract entered into upon the sale, by the plaintiff to the defendant, of 200 shares of stock of the Central Pacific Bailroad Com-
The evidence taken upon the trial was directed to the support of the plaintiff’s action in both of these aspects. At the close of the plaintiff’s proof he was required by the court to elect upon which of the claims made in this manner he would rest his right to recover. To that ruling he objected and excepted, on the ground that this general term, upon an appeal from a preceding judgment, had determined that the plaintiff did not have alternative rights or remedies against the defendant, but was limited to the recovery of damages for the refusal to return the stock when that was demanded, after the telegraphic message received from Mr. Aspinwall. This court, on that occasion, did so decide, and, under the decision made in that manner, the plaintiff’s action was limited to the right to recover damages for the refusal to return the stock. There was, consequently, no reason for requiring any
The evidence given by the witness Aspinwall, that the defendant had stated to him that he had paid the sum of $400 a share for the stock of the company, has not been overlooked; neither was it when the case was before the general term after the recovery of the first judgment. But while that statement was made, it is evident, from the further examination of the witness, that it related to the purchase of the stocks under the circumstances already stated. It was done by way of settlement and compromise, and not in the ordinary course of the sales of the stock of the company; and this evidence added ifo greater force in the way of maintaining the action in the form finally taken by the counsel than the other testimony, given in great detail, showing the manner and motives leading to the purchase of the shares in the state of California. The defendant did not agree to pay to the plaintiff, as the value of the shares sold by him, the price paid for shares by way of an adjustment of a serious legal controversy; but what the plaintiff was to have the benefit of by this part of the agreement was the value or price of shares purchased by the defendant, either individually or jointly with others, in the ordinary course of such transactions. The fact did not support the plaintiff’s right to this payment that the associates in the Contract & Finance Company had, as they are stated to have done, absorbed a very large amount of the property and profits of the railroad company itself, and that they adjusted the controversies of the dissatisfied shareholders for the purpose of more completely securing to themselves the misappropriation of bonds, property, and moneys alleged to have taken place, in support of the action proposed to be commenced, and of the suit which actually was commenced. The circumstances prior to the transactions alleged, and at the time when the suit was commenced, did afford reason for believing that the charges made against them were not wholly destitute of foundation. The adjustments which they made confirmed this supposition. But these facts do nqt aid or benefit the plaintiff in his right to maintain this action for the recovery of the advanced price paid. He was not entitled to maintain this suit for that price, because the defendant and the other three associates with him in the Contract & Finance Company had enriched themselves by the misappropriation of the property and moneys of the railroad company. But the right to complain of such misconduct did exist in favor of the railroad company itself, and the owners of its stock; and as that company was controlled by the defendant and his three other associates, and for that reason could not vindicate these rights by action, the stock-' holders complaining of this misconduct have the right to institute and prosecute actions for the redress of the railroad company in these respects, and to obtain an accounting and delivery of the property improperly abstracted to that company for their benefit and the benefit of all other persons who were stockholders in the railroad company. The right as well as the remedy was limited to these persons.
But while these facts appear to be conclusive against the plaintiff’s right to recover the difference between the price paid for his shares and the price in this manner paid for the shares in the state of California, they are not entitled to the same effect under the other branch of the agreement. By that part of the agreement the defendant agreed to return the shares to the plaintiff upon the money being refunded in case Mr. Aspinwall proved to be dissatisfied with the sale when he reached California. He was dissatisfied, and that fact was communicated to the defendant, and he was requested to return the shares, and the money which had been received for them was proposed to be paid to him. That he refused to do, but if, instead of this refusal, he had returned the shares, the plaintiff would have been in the same situation as the shareholders were who proposed to commence the first suit, and as the stock
Lead Opinion
In view of the conclusion arrived at by the general term upon the previous appeal in this case, the same questions being involved upon this appeal, the judgment of the court below should be affirmed, with costs. After the reversal by the general term of the judgment heretofore entered upon the first trial, when the case came up at the circuit for a retrial, the pleadings were the same as they were before, and presented the same causes of action and defenses. In the complaint were alleged two inconsistent causes of action, and at the conclusion of the evidence the plaintiff was called upon to elect upon which cause of action he claimed to recover. The court was justified in compelling this election, because, as has already been said, the two causes of action were inconsistent, and a recovery must be had upon either one or the other, and could not be claimed upon both.
The plaintiff having made his election as to which of these causes of action he claims a recovery, no claim upon this appeal could possibly be advanced upon the other, because such cause of action was by the election necessarily eliminated from the record. The general term having already decided that no recovery could be had upon the cause of action selected by the plaintiff, the necessary consequence was that the court was justified in directing the verdict which it did, and it was probably for the purpose of reviewing the previous decision of the general term that this course was adopted by the counsel for the plaintiff. The same questions being involved on this appeal as were involved when the case was before the court before, the same conclusion should be arrived at, and the judgment affirmed, with costs, as has already been stated.
Brady, J., concurs.