Alexander v. Soulas

• Decision Date: 21 February 1921
• Docket Number: 29
• Parties: Alexander v. Soulas, Appellant
• Court: Pennsylvania Supreme Court

112 A. 538

269 Pa. 423

Alexander v. Soulas, Appellant

No. 29

Supreme Court of Pennsylvania

February 21, 1921

Argued January 6, 1921

Appeal, No. 29, Jan. T., 1921, by defendant, from judgment of C.P. No. 1, Phila. Co., March T., 1917, No. 4236, on verdict for plaintiff, in case of A.C. Alexander, trading as Alexander & Co. v. G.A. Soulas. Affirmed.

Assumpsit for breach of contract to exchange corporate securities. Before PATTERSON, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $2,464. Defendant appealed.

Errors assigned were instructions and rulings, recited in the opinion of the Supreme Court, and refusal of defendant's motion for judgment n.o.v., quoting record.

We find no error in the various assignments and the judgment of the court below is affirmed.

George J. Edwards, Jr., for appellant. -- Defendant had a legal right to withdraw at any time prior to acceptance by plaintiff: Vincent v. Woodland Oil Co., 165 Pa. 402; Bosshardt & Wilson Co. v. Crescent Oil Co., 171 Pa 109; East End Savings & Trust Co. v. Chadwick, 223 Pa. 70.

Plaintiff was not entitled to these bonds nor the value thereof. The contract was but an executory contract of sale, and as nothing was bought or sold by the parties, the rule as to difference in market values applies, viz: the market value of these bonds on April 10, 1917, and the market value on April 11, 1917. There was no proof of any difference in value on these days, therefore no loss was established: Hauptman v. Penna. Working Home, etc., 258 Pa. 427; Seward v Penna. Salt Mfg. Co., 266 Pa. 457; Penna. Co., etc., v. R.R., 153 Pa. 160; Huntingdon & Broadtop R.R. v. English, 86 Pa. 247; North v. Phillips, 89 Pa. 250; Unexcelled Fire Works Co. v. Polites, 130 Pa. 536; Jones v. Jennings Bros. & Co., 168 Pa. 493; Sharpsville Furnace Co. v. Snyder, 223 Pa. 372.

The failure to prove damages entitled defendant to binding instruction in his favor, or at the worst affirmance of point for nominal damages, as indicated in Seward v. Penna. Salt Mfg. Co., 266 Pa. 457; Unexcelled Fire Works Co. v. Polites, 130 Pa. 536; Jones v. Jennings, 168 Pa. 493; Curtis v. Buzard, 254 Pa. 61; Sharp v. Levan, 236 Pa. 374.

No action on an agreement for sale of stock could be maintained where the agreement was unstamped: Johnson v. Hulings, 103 Pa. 498; Swing v. Munson, 191 Pa. 582; Chartiers, etc., Turnpike Co. v. McNamara, 72 Pa. 278; Roney v. Westlake, 216 Pa. 374.

Thomas F. Gain, with him Frank A. Chalmers, for appellee, cited: Unexcelled Fire Works Co. v. Polites, 130 Pa. 536; Kountz v. Kirkpatrick, 72 Pa. 376.

Before FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

Plaintiff and defendant entered into negotiations for the exchange of securities owned by them respectively, and, on April 10, 1917, plaintiff prepared for defendant's signature a written proposal, as follows: "I make you the following proposition: "I will accept from you forty (40,000) thousand shares White Pine Mining Co. stock in trade and payment for one hundred (100,000) thousand shares of St. Anthony Mining Company stock, $10,000 (par value) Hudson & Manhattan 1st & Ref. 5s, $5,000 (par value) Wilkes-Barre Coal Company, 30 yr. Coupon Bonds, due 1940. This proposition good to and including Saturday, April 14, 1917." Plaintiff took the proposal to the office of defendant who signed it and, according to plaintiff's testimony, the latter verbally accepted the offer and defendant agreed to make delivery the following day. Instead of complying with the agreement, however, defendant telephoned plaintiff he had decided not to take the stock and called the deal off, and, on the following day, April 12th, advised plaintiff in writing to that effect, confirming the telephone conversation. In the meantime, on April 11th, but after the telephone conversation in which defendant notified plaintiff of his intention not to carry out the transaction, plaintiff, by writing, confirmed his verbal acceptance of the proposition, with suggestion as to arrangement for delivery. Defendant denied the creation of a contract by a written offer and verbal acceptance as claimed by plaintiff and testified that at the time he signed the letter of April 10th it was understood to be merely a memorandum of an offer to be accepted after investigation by him of the White Pine stock, that there was no verbal acceptance of the offer as testified to by plaintiff, and that the offer was withdrawn before receipt of plaintiff's alleged written acceptance of April 11th. These questions were submitted to the jury who found in favor of plaintiff. The evidence adduced on behalf of plaintiff is sufficient to sustain the verdict and, unless there are other matters calling for reversal, the judgment must stand.

Defendant bases his principal argument on the fact that plaintiff failed to prove damage for loss resulting from the breach of contract and was, consequently, entitled to a verdict for nominal damages only. The contention is that the agreement was but an executory contract for sale of stock and, as there was no actual transfer of property, the measure of damages was the difference between the market value of the stock plaintiff was to receive on the day the contract was entered into and its market value on the day fixed for delivery, and inasmuch as but one day intervened and no proof of a difference in value appeared, no loss was shown. In support of this argument numerous cases are cited which apply the rule stated as governing the measure of damages for breach of contract for sale of goods. The rule is well established, but in applying it to the present case we must bear in mind the contract in question is not one of sale of goods for a cash consideration where the vendee can use his money to...