Tompkins v. Sheehan

• Decision Date: 18 April 1899
• Citation: 53 N.E. 502,158 N.Y. 617
• Parties: TOMPKINS v. SHEEHAN.
• Court: New York Court of Appeals Court of Appeals

158 N.Y. 617

53 N.E. 502

TOMPKINS

v.SHEEHAN.

Court of Appeals of New York.

April 18, 1899.

Appeal from supreme court, appellate division, Third department.

Action by Hiram Tompkins against Cornelius Sheehan. A verdict and judgment were rendered for plaintiff, and defendant appealed to the appellate division, which affirmed the judgment (40 N. Y. Supp. 1150), and defendant again appeals. Reversed.

Bartlett and Martin, JJ., dissenting.

Edwin Countryman, for appellant.

Charles S. Lester, for respondent.

GRAY, J.

The plaintiff has sought by this action to recover of the defendant the purchase price of 200 shares of the capital stock of the Congress Springs Company, which, in his complaint, he alleges to have been included in a sale of 1,985 shares to the defendant, as effected for the several owners through the agency of one of their number. It is therein further averred that the agreement with respect to the sale of the 1,985 shares was that it should be conditioned upon the defendant's purchasing and paying for the whole thereof at the price fixed, and that, in pursuance of the agreement, 1,785 shares were delivered to, and paid for by, the defendant; but that, by reason of the plaintiff's certificate having been mislaid, his shares were not included at the time of the delivery. The defendant, by his answer, admitted the purchase of the 1,785 shares of stock, but denied the allegations of the complaint relating to the plaintiff's shares; and, as a further defense, alleged the invalidity of the agreement referred to in the complaint under the statute of frauds.

The circumstances, as developed upon the trial with respect to this controversy, showed that in February, 1890, a block of 1,985 shares of the stock in question was purchased from one Hotchkiss by five persons, of whom the plaintiff was one. The purchase would appear to have been made at the instance or suggestion of the defendant, who soon thereafter, through the controlling interest of this holding, was able to elect his own board of directors, and to become the president of the company. The 1,985 shares were registered upon the books of the company in the names of the five persons by whom they had been bought, in the several amounts to which their interests in the purchase entitled them. Subsequently, and in December of the same year, the defendant, through a lawyer, approached Mr. Bockes, who held 496 of the 1,985 shares, with the proposition to buy the whole block of stock. Bockes communicated directly with all of the holders of the shares, except the plaintiff, who was at the time in Chicago, and received their consent to a sale at the price which they had paid for them, with interest at the legal rate added to the date of delivery. Mr. Bockes telegraphed to the plaintiff, and testified that he received a reply assenting to the sale of his shares. That telegram appears to have been lost, and the only one produced by the plaintiff was sent the day after the shares of the other four persons had been delivered to the defendant. On a certain day in December, Mr. Bockes delivered to the defendant, and received from him the agreed price for, 1,785 shares. He had not received the plaintiff's certificate of stock before the closing of the transaction with the defendant, by reason of its not having been found; and, when he did receive it a few days later, he left it at the office of the defendant's attorney, where it remained for some time, before he returned it to the plaintiff, by reason of the defendant's refusal to consider it as included in his purchase of the stock. On behalf of the plaintiff, the evidence went to show that the sale was expressly conditioned upon the 1,985 shares being sold as an entirety, and that the defendant agreed to that arrangement. On the part of the defendant, the evidence was that the plaintiff's shares were not included in the transaction; the defendant's testimony and that of his attorney contradicting explicitly the testimony given for the plaintiff, and denying that there was any other arrangement entered into than one for the purchase of the 1,785 shares. The issue of fact, as to what the agreement was between Mr. Bockes, acting for himself and the other holders of the Hotchkiss stock, and the defendant, was submitted to the jury, who found in favor of the plaintiff. It was the view of the trial judge, and he so instructed the jury, that, if the agreement was to purchase 1,985 shares of stock, the plaintiff's 200 shares being included in that number, and the delivery to the defendant was made with the understanding that the plaintiff's shares were to be delivered as part of the entire purchase of 1,985 shares, the case would be taken out of the operation of the statute of frauds. Exceptions were taken to the charge in this respect, as they had also been taken to the refusal of the trial judge to dismiss the complaint for the invalidity, under the statute of frauds, of the alleged parol agreement for the sale or purchase of the plaintiff's shares of stock.

The question of law which is thus presented is sought to be met and answered by the plaintiff, who is respondent here, upon the ground that it was proved, and found as a fact by the jury, that the contract of sale was the joint contract of the plaintiff and the four other persons who, with him, had...