Smith v. Lockwood

The Superior Court of New York City

Smith v. Lockwood

29 Jones & S. 114, 46 N.Y. St. Rep. 244, 61 N.Y. Sup. Ct. 114

CourtThe Superior Court of New York City

DecidedMay 2, 1892

StatusPublished

This text of 29 Jones & S. 114 (Smith v. Lockwood) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Lockwood, 29 Jones & S. 114, 46 N.Y. St. Rep. 244, 61 N.Y. Sup. Ct. 114 (N.Y. Super. Ct. 1892).

Pincite

Opinion

Per Curiam.

The testator in his life-time made, with the plaintiff, an agreement whereby he promised to pay and transfer to the plaintiff three hundred shares of the capital stock of the Staten Island Water Supply Company, the payment and transfer to be one hundred and fifty shares upon payment to him by said company of one-half of the stock to be paid to him, pursuant to the contract with the company, and the remaining one hundred and fifty shares when the works are turned over and accepted by said company.

The action concerned only the last installment of one hundred and fifty shares. The defence was that the works had never been turned over and accepted by the company. The reply to this is satisfactory. Before the works had been accepted by the company the testator, in his life-time, before the completion of his contract, assigned it to a third party with the approval of the company, that at the same time released Lockwood, defendant’s testator.

On the face of the contract, and from extrinsic circumstances, it appears that the acceptance was referred to only as a date or time of payment. The testator was responsible solely, so far as appears, for the acceptance never taking place. He could not by his own act, dissolve the obligation of the contract, and his executors remain liable upon it.

The plaintiff was present at the meeting of the directors who released Lockwood from the contract. But he did not vote for or promote in any way the assent of the company to Lockwood’s assignment of the contract or his release. Nothing shows any assent on his part to the course taken by Lockwood.

Defendant’s exception overruled and judgment ordered for plaintiff on verdict, with costs.

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Per Curiam.

The testator in his life-time made, with the plaintiff, an agreement whereby he promised to pay and transfer to the plaintiff three hundred shares of the capital stock of the Staten Island Water Supply Company, the payment and transfer to be one hundred and fifty shares upon payment to him by said company of one-half of the stock to be paid to him, pursuant to the contract with the company, and the remaining one hundred and fifty shares when the works are turned over and accepted by said company.

The action concerned only the last installment of one hundred and fifty shares. The defence was that the works had never been turned over and accepted by the company. The reply to this is satisfactory. Before the works had been accepted by the company the testator, in his life-time, before the completion of his contract, assigned it to a third party with the approval of the company, that at the same time released Lockwood, defendant’s testator.

On the face of the contract, and from extrinsic circumstances, it appears that the acceptance was referred to only as a date or time of payment. The testator was responsible solely, so far as appears, for the acceptance never taking place. He could not by his own act, dissolve the obligation of the contract, and his executors remain liable upon it.

The plaintiff was present at the meeting of the directors who released Lockwood from the contract. But he did not vote for or promote in any way the assent of the company to Lockwood’s assignment of the contract or his release. Nothing shows any assent on his part to the course taken by Lockwood.

Defendant’s exception overruled and judgment ordered for plaintiff on verdict, with costs.

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Bluebook (online)

29 Jones & S. 114, 46 N.Y. St. Rep. 244, 61 N.Y. Sup. Ct. 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-lockwood-nysuperctnyc-1892.