Brown v. O. F. Jonasson & Co.

Appellate Terms of the Supreme Court of New York

Brown v. O. F. Jonasson & Co.

108 N.Y.S. 996

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 5, 1908

StatusPublished

This text of 108 N.Y.S. 996 (Brown v. O. F. Jonasson & Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. O. F. Jonasson & Co., 108 N.Y.S. 996 (N.Y. Ct. App. 1908).

Pincite

Opinion

BISCHOFF, J.

The breach of contract assigned was the failure of the defendant to cause the stock sold by it as a broker to the plaintiff to be placed upon the market. The sale was on October 26, 1906, and, taking the most favorable view of the proof, the defendant at that time agreed to cause the stock to be placed upon the market “in two or three weeks.” Delivery of the certificate of stock appears to have been delayed until December 20th, and at that time the stock had not been placed upon the market, as the plaintiff knew. Thus she accepted the certificate and permitted the sale to become executed at a time when the breach of condition had taken place and an ample period for disaffirmance upon her part had already elapsed. The judgment rendered in her favor for the full purchase price can have been based on no theory other than that of a rescission and an offer to restore; but clearly the acceptance of the certificate after the breach precluded a later rescission, and at best the plaintiff’s case could be supported only upon the ground of the breach of an agreement of warranty, surviving acceptance. For this breach, however, the damages would be measured by the difference between the value of the property purchased as warranted and with the warranty broken; but the evidence failed to establish a measure which could result in the damages expressed by this judgment.

The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

Free access — add to your briefcase to read the full text and ask questions with AI

BISCHOFF, J.

The breach of contract assigned was the failure of the defendant to cause the stock sold by it as a broker to the plaintiff to be placed upon the market. The sale was on October 26, 1906, and, taking the most favorable view of the proof, the defendant at that time agreed to cause the stock to be placed upon the market “in two or three weeks.” Delivery of the certificate of stock appears to have been delayed until December 20th, and at that time the stock had not been placed upon the market, as the plaintiff knew. Thus she accepted the certificate and permitted the sale to become executed at a time when the breach of condition had taken place and an ample period for disaffirmance upon her part had already elapsed. The judgment rendered in her favor for the full purchase price can have been based on no theory other than that of a rescission and an offer to restore; but clearly the acceptance of the certificate after the breach precluded a later rescission, and at best the plaintiff’s case could be supported only upon the ground of the breach of an agreement of warranty, surviving acceptance. For this breach, however, the damages would be measured by the difference between the value of the property purchased as warranted and with the warranty broken; but the evidence failed to establish a measure which could result in the damages expressed by this judgment.

The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

Cite This Page — Counsel Stack

Bluebook (online)

108 N.Y.S. 996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-o-f-jonasson-co-nyappterm-1908.