Drake v. Reiner

Appellate Division of the Supreme Court of New York

Drake v. Reiner

233 A.D. 424, 254 N.Y.S. 838, 1931 N.Y. App. Div. LEXIS 11316

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 11, 1931

StatusPublished

This text of 233 A.D. 424 (Drake v. Reiner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Drake v. Reiner, 233 A.D. 424, 254 N.Y.S. 838, 1931 N.Y. App. Div. LEXIS 11316 (N.Y. Ct. App. 1931).

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Opinions

Per Curiam.

During the running of the written contract, plaintiff could make no payment nor otherwise have credit on account of the purchase price of the stock, except by means of dividends declared thereon. Hence, defendant’s option to acquire plaintiff’s title in the event of his discharge was conditioned on the repayment of the only credits originally contemplated. But, under the circumstances detailed in the evidence, defendant gave and plaintiff accepted a credit of $1,747.30 on account of the purchase price. To that extent at least the terms of the written contract were waived. To that extent plaintiff acquired in the stock a definite interest which he did not have before. Deprived of it, his loss was capable of admeasurement in terms of dollars and cents. It was precisely the same loss which he would have sustained had the credit resulted from a cash payment made by him. Under the circumstances, it was for the jury to determine the [426]*426intent of the parties (Braxton v. Mendelson, 233 N. Y. 122, 124), and to say whether or not, upon plaintiff’s discharge thereafter, defendant was bound to pay plaintiff the ascertainable value of his interest in the stock, before he could acquire title to it and treat it as his own. If defendant was so bound, then his disposition of plaintiff’s stock was a breach of his contract, equivalent to a total failure to perform, for which an action as for money had and received would lie (Rosenwasser v. Blyn Shoes, Inc., 246 N. Y. 340, 344; Joyce v. Adams, 8 id. 266); or for damages. While the complaint is a sufficient basis for either action, the case was tried and decided as one to recover as if for money paid. Had it been for damages, the verdict would probably have been much larger, since there was evidence (arising from the sale of other shares by plaintiff for $120 per share) that the value of the 146 shares was $17,600.

The judgment should be affirmed.

All concur, except Sears, P. J., and Crosby, J., who dissent in a memorandum and vote for reversal on the law. Present — Sears, P. J., Crouch, Edgcomb, Thompson and Crosby, JJ.

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Per Curiam.

During the running of the written contract, plaintiff could make no payment nor otherwise have credit on account of the purchase price of the stock, except by means of dividends declared thereon. Hence, defendant’s option to acquire plaintiff’s title in the event of his discharge was conditioned on the repayment of the only credits originally contemplated. But, under the circumstances detailed in the evidence, defendant gave and plaintiff accepted a credit of $1,747.30 on account of the purchase price. To that extent at least the terms of the written contract were waived. To that extent plaintiff acquired in the stock a definite interest which he did not have before. Deprived of it, his loss was capable of admeasurement in terms of dollars and cents. It was precisely the same loss which he would have sustained had the credit resulted from a cash payment made by him. Under the circumstances, it was for the jury to determine the [426]*426intent of the parties (Braxton v. Mendelson, 233 N. Y. 122, 124), and to say whether or not, upon plaintiff’s discharge thereafter, defendant was bound to pay plaintiff the ascertainable value of his interest in the stock, before he could acquire title to it and treat it as his own. If defendant was so bound, then his disposition of plaintiff’s stock was a breach of his contract, equivalent to a total failure to perform, for which an action as for money had and received would lie (Rosenwasser v. Blyn Shoes, Inc., 246 N. Y. 340, 344; Joyce v. Adams, 8 id. 266); or for damages. While the complaint is a sufficient basis for either action, the case was tried and decided as one to recover as if for money paid. Had it been for damages, the verdict would probably have been much larger, since there was evidence (arising from the sale of other shares by plaintiff for $120 per share) that the value of the 146 shares was $17,600.

The judgment should be affirmed.

All concur, except Sears, P. J., and Crosby, J., who dissent in a memorandum and vote for reversal on the law. Present — Sears, P. J., Crouch, Edgcomb, Thompson and Crosby, JJ.

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233 A.D. 424, 254 N.Y.S. 838, 1931 N.Y. App. Div. LEXIS 11316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-reiner-nyappdiv-1931.

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