Heller v. Pope
| Citation | 164 N.E. 881,250 N.Y. 132 |
| Parties | HELLER v. POPE et al. |
| Decision Date | 31 December 1928 |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Alexander Heller against Charles E. Pope and another, individually, and as copartners. From a judgment of the Appellate Division (222 App. Div. 738, 226 N. Y. S. 828), affirming a judgment granting defendant's motion for judgment on the pleadings, plaintiff appeals.
Affirmed.
Appeal from Supreme Court, Appellate Division, First department.
Samuel J. Rosensohn and J. Robert Rubin, both of New York City, for appellant.
Avery F. Cushman and Frankin Leonard, Jr., both of New York City, for respondents.
In a former action between the parties, the complaint undertook to set forth a cause of action for breach of contract. The contract alleged was as follows:
‘July 6th, 1917.
‘Messrs. C. W. Pope & Co., 25 Broad Street, New York:
Gentlemen.-Referring to an arrangement I am making with you this day, I agree to let you sell for me 200,000 shares of treasury stock of the Tuscon Arizona Copper Co., of Tuscon, Arizona, at $1.00 per share and agree to sell same to you under an option for 70 per share.
‘I also agree to option to you 70,000 shares of treasury stock additional at $1.00 per share. You are to use your discretion in the selling price of this stock, but it cannot be sold for less than $1.25 per share.
‘When this treasury stock is disposed of by you, I then give you an option on 150,000 shares of Vendors stock at 95c per share, which you cannot sell for less than $1.25 minimum. I leave it to your discretion to get as much as you can for this stock, but under no conditions would I care to have this stock sold for less than $1.25.
‘For this option you agree to do the following:
‘You agree to sell this stock at the best of your ability; advertise it, and use all the methods necessary for the disposal of same, and you guarantee to sell a minimum of 10,000shares per month, each calendar month, beginning the 25th day of July.
‘Very truly yours,
[Signed] A. Heller.
‘Agreed to: [Signed] C. W. Pope & Co.’
The complaint was dismissed, because the court held that, from a mere inspection of the writing, it was an option and not a contract for the purchase and sale of stock. Heller v. Pope, 183 App. Div. 864, 171 N. Y. S. 619.
The complaint herein contains further allegations. It sets forth that the word ‘option’ means ‘exclusive right’; that the word ‘guaranteed’ meant that defendants would sell for the plaintiff a minimum of 10,000 shares per month until all the shares of stock mentioned in said agreement had been sold by defendant; that by the words ‘agreed to’ it was intended to mean that defendants ‘accepted the exclusive right to sell the stock.’
It appears on the face of the complaint that defendants, after signing under the words ‘agreed to’ on the face of the writing, refused to ‘approve the memorandum.’ Plaintiff alleges that this was the repudiation of a contract. Defendants argue that it was a refusal to accept an option.
Does the complaint state facts sufficient to constitute a cause of action?
[1] The question is as to the fair and reasonable meaning that may be given to the writing sued on. Written words may have more than one meaning. ‘The letter killeth but the spirit giveth life.’ 2 Cor. 3:6. ‘Form should not prevail over substance and a sensible meaning of words should be sought.’ Atwater & Co. v. Panama R. R. Co., 246 N. Y. 519, 524, 159 N. E. 418, 419. But plain meanings may not be changed by parol, and the courts will not make a new...
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