Johnson v. Gumer

Appellate Division of the Supreme Court of New York

Johnson v. Gumer

149 A.D.2d 933, 540 N.Y.S.2d 66, 1989 N.Y. App. Div. LEXIS 5942

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

DecidedApril 14, 1989

StatusPublished

Cited by1 cases

This text of 149 A.D.2d 933 (Johnson v. Gumer) 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

Johnson v. Gumer, 149 A.D.2d 933, 540 N.Y.S.2d 66, 1989 N.Y. App. Div. LEXIS 5942 (N.Y. Ct. App. 1989).

Pincite

Opinion

— Judgment unanimously affirmed with costs. Memorandum: We affirm for the reasons stated in the decision of Supreme Court (Miles, J.). We add that we reject plaintiffs’ argument that the agreement was supported by sufficient consideration because it was a contract of bailment. In support of this argument, plaintiffs cite 9 NY Jur 2d, Bailments and Chattel Leases, § 23: "All contracts of bailment * * * are supported by a sufficiently good and legal consideration where there is a transfer of possession of the property”. Plaintiffs, however, fail to cite the next succeeding clause, "that consideration lies in the detriment occasioned to the bailor by his yielding up the present possession or custody of the article bailed upon the faith of the engagement of the bailee to redeliver or account for it.” Here there was no detriment occasioned to the alleged bailor because he did not yield up possession or custody of the shares of stock; indeed, under the facts found by the court, he never had the right to their possession because he neither paid the agreed price for the shares nor delivered the demand note therefor.

Plaintiffs’ reliance upon General Obligations Law § 5-1101 is misplaced. Although that section provides that a promise to sell shares of stock is not void or voidable for want of consideration, or because of the nonpayment of consideration, it does not permit the promisee to enforce the contract without payment of the agreed price. Here, although the contract was neither void nor voidable because of the nonpayment of consideration, nevertheless, plaintiffs’ assignor could not enforce the agreement until he tendered or performed the agreed condition on his part to be performed (see, 51 NY Jur, Sales, §§ 85, 150), namely, the payment of the agreed price therefor [934]*934or the delivery of a demand note. Moreover, because plaintiffs’ assignor failed to perform his part of the agreement, defendant, the unpaid seller, had the right to keep the property as his own (see, Mason v Decker, 72 NY 595, 599). (Appeal from judgment of Supreme Court, Orleans County, Miles, J.— breach of contract; conversion.) Present — Callahan, J. P., Doerr, Boomer, Pine and Davis, JJ.

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

— Judgment unanimously affirmed with costs. Memorandum: We affirm for the reasons stated in the decision of Supreme Court (Miles, J.). We add that we reject plaintiffs’ argument that the agreement was supported by sufficient consideration because it was a contract of bailment. In support of this argument, plaintiffs cite 9 NY Jur 2d, Bailments and Chattel Leases, § 23: "All contracts of bailment * * * are supported by a sufficiently good and legal consideration where there is a transfer of possession of the property”. Plaintiffs, however, fail to cite the next succeeding clause, "that consideration lies in the detriment occasioned to the bailor by his yielding up the present possession or custody of the article bailed upon the faith of the engagement of the bailee to redeliver or account for it.” Here there was no detriment occasioned to the alleged bailor because he did not yield up possession or custody of the shares of stock; indeed, under the facts found by the court, he never had the right to their possession because he neither paid the agreed price for the shares nor delivered the demand note therefor.

Plaintiffs’ reliance upon General Obligations Law § 5-1101 is misplaced. Although that section provides that a promise to sell shares of stock is not void or voidable for want of consideration, or because of the nonpayment of consideration, it does not permit the promisee to enforce the contract without payment of the agreed price. Here, although the contract was neither void nor voidable because of the nonpayment of consideration, nevertheless, plaintiffs’ assignor could not enforce the agreement until he tendered or performed the agreed condition on his part to be performed (see, 51 NY Jur, Sales, §§ 85, 150), namely, the payment of the agreed price therefor [934]*934or the delivery of a demand note. Moreover, because plaintiffs’ assignor failed to perform his part of the agreement, defendant, the unpaid seller, had the right to keep the property as his own (see, Mason v Decker, 72 NY 595, 599). (Appeal from judgment of Supreme Court, Orleans County, Miles, J.— breach of contract; conversion.) Present — Callahan, J. P., Doerr, Boomer, Pine and Davis, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

149 A.D.2d 933, 540 N.Y.S.2d 66, 1989 N.Y. App. Div. LEXIS 5942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-gumer-nyappdiv-1989.

Opinion

Related

Cite This Page — Counsel Stack