Fisk v. Batterson

165 A.D. 952, 150 N.Y.S. 242

Opinion

Per Curiam:

Although inartificial in form, the instrument sued on imported a unilateral contract on defendant’s part to buy of plaintiffs the stock described, and on tender of the stock and demand of the purchase price, before revocation by defendant, plaintiffs’ right to recover became perfect. The answer alleged neither fraud nor mistake nor was the execution of the instrument denied or reformation thereof sought. The defense was that defendant’s dealings prior to the delivery of the instrument were with agents of the Grieve Company, with which company and not with plaintiffs defendant intended to and did in fact contract. Plaintiffs did not move for judgment on the pleadings nor for the direction of a verdict, and notwithstanding the defense, tendered no issue. (Gordon Malting Co. v. Bartels Brewing Co., 206 N. Y. 528.) The action went to trial and was tried on the theory that it did. An examination of the evidence serves to confirm the fact that the intention of the parties was exactly such as the law imported from the instrument itself. The judgment should be reversed and a new trial granted, with costs to appellants to abide the event. Present — Ingraham, P. J., McLaughlin, Laughlin, Dowling and Hotchkiss, JJ. Judgment reversed, new trial ordered, costs to appellants to abide event. Order to be settled on notice.