McCoy v. Milbury

• Decision Date: 14 June 1915
• Docket Number: No. 86.,86.
• Citation: 87 N.J.L. 697,94 A. 621
• Parties: McCOY v. MILBURY.
• Court: New Jersey Supreme Court

94 A. 621

87 N.J.L. 697

McCOY

v. MILBURY.

No. 86.

Court of Errors and Appeals of New Jersey.

June 14, 1915.

Appeal from Supreme Court.

Action by Emma A. McCoy against Arthur W. Milbury. Judgment for defendant, and plaintiff appeals. Affirmed.

The suit was upon an alleged oral understanding by defendant to protect plaintiff against any loss that might be incurred by her purchasing certain mining stock at defendant's suggestion, as claimed. The stock deteriorated in market value, and plaintiff called upon defendant to indemnify her. It was disputed whether he had ever agreed to indemnify her, and also whether there was any liability on such alleged agreement. Finally the parties came together and executed an agreement intended to adjust their differences, but containing a clause that plaintiff reserved the right to terminate it at any time on giving a specified notice. Such notice was given after defendant had repurchased a considerable amount of the stock under the agreement, and plaintiff sought, by her suit thereafter brought, to hold defendant on his alleged original undertaking. Plaintiff had a verdict, which on rule to show cause was set aside by the Supreme Court in the following per curiam:

"Among the matters that the court left to the jury was the question whether the agreement of April 8, 1911, was an entirely new agreement; that it was to take the place of, and did take the place of, anything that had gone before. We think this was not a jury question. The making of the agreement was undisputed, and there can be no question that it was intended as a compromise and settlement of the matters in difference between the parties. If so, as the court properly charged, it put an end to any pre-existing liability of the defendant. The option of revocation given to Miss McCoy at the end of the agreement did not operate to revive any such pre-existing liability, but was to guard against any obligation on her part to return unredeemed stock if she chose to retain it.

"The effect of the agreement of 1911 being to supersede prior relations of the parties, as a court question, the trial court should have directed a verdict for the defendant.

"This result makes it unnecessary to discuss any of the other grounds for new trial that were argued.

"The rule to show cause will be made absolute."

The case went back for a second trial, at which the printed book of the evidence at the first trial was submitted as the evidence in the case, and thereupon the trial judge, following the intimation of the Supreme Court, directed a verdict for the defendant, and plaintiff appealed to this court.

This agreement in question is as follows:

"Agreement between Emma A. McCoy, of New Brunswick, N. J., and Arthur W. Milbury, of Hoboken, N. J., dated Saturday, April 8, 1911:

"Whereas, Emma A. McCoy, of New Brunswick, purchased and became the possessor of five thousand six hundred (5,600) shares of stock of Douglas Mining Company of South Dakota and paid two thousand dollars ($2,000.00) for the same—fifteen hundred dollars ($1,500.00) on or about May 28, 1907, and five hundred dollars ($500.00) on or about August 7, 1907—which makes the said stock cost something less than thirty-six cents ($0.36) per share; and whereas, the business of the Douglas Mining Company has not proved profitable; and whereas, the seller of the aforesaid stock, Arthur W. Milbury,...