The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-01-04
SUPREME COURT GENERAL TERM.
A Petroleum Stock TrnnsncfIon-1vhat Con.
stilmlcs Finding G0nlrncts

a Petroleum stock Trnnsncflon-SVhat Con.
stituies Binding Contrncte
Before Judges Leonard. Sutherland and Peckham.
John NJ otter respondent, The B,erooa Petroleum
Csmpany-This was appeal from Judgment rem
dered at the rcuit argued before the November Gene
raj Tsrm and tho following opinion reversing the juds.
mont and ordering trial, rendered By the
Court Monday last
LEONARD, I. J.--rh defendants authorized George H.
WAITE then President, ard william II. Lee, trustee,
sell four thousand shares OF tho stock or the company
for 81 80 per share, the par value being $40. white
received from tho pia ntiG ST. $50 the 23d OF August
1854 and signed receipt for that from tho plain
TIT lin iu for hundred OF the capital sock
tho company the receipt TO be exchanged FOR cer.n.
Gates o. soocs On Presentation 70 We secre.ay white
valid contract the face of it. bind ng the company
TO deliver the stock for which the plaintiff money
received II IS SAID that public policy win not permit
an Incorporated company 10 sell its own shares
for less tEan par. the facts not before
tho Court 10 raise tho question mentioned. IL
mas not been made TO appear how the company
acquired tho stock IL may have been issued
property and acquired subsequently by tho company
may have been forfeited stock the nen-pa, ent
OF the subscription price. II cannot be inferred In ia
yor Of the defendants that tho stock bad not been fully
paid up and afterwards acquired by the company. II
II were Otherwise l am unable TO perceive any rule Of
public policy that requires the court to relieve the de-
fen ants from contract otherwise without objection,
binding II to the delivery or shares In its capital for
price below its par value Tie contest in this case
lac 10 the non delivery OF two hundred shares, por-
ton of the number mentioned In the onract. the
company delivered to the plaintiff certificates for i've
hundred shares, admitting the validity OF the contract
only 10 that extent When the receipt signed by
tho president OF the company the plaintiff stated that
he had agreed with Mr. Lee 10 two hundred shares
from 10 addition tue five hundred which he had
agreed before that tlme verbally with the president to
take and pay for al the price named He stated to
White that Lee had agreed that ho should have two
hundred shares Of the sock which the company
were Offering TO dispose OF through the agen-
cy OF White and Lee. II appeared that Loo
ness vas transacted and White, relying upon the truth
Of this statement received tue money OF the plaintiff
and signed shs obligation 81 August 70 binding tho
claimed by the plaintiff. Lee witness the trial
well IS the painn, and testified that he had not
made any agreement 10 sell the two hundred shares
tho plaintiff Upon his return no had informed tho OH
Of the company that he had not made any such
agreement had been claimed by the plaintiff and in.
sisted tho claimed had takeu by and
belonged to him. the said lee. The defendants accepted
his Version OF the matter and Issued the shares In
roversy 10 Mr. Lee IL IL quite clear from examiRa
ton OF the evidence that there valid contract
between Lee, either IL his individual capacity acting
tho trustees and agent OF tho company and the
plaintiff for tbs purchase and sae OF the shares In ques
ton. There no contract IN writing signed by the
ceved account AS bet ween Lee api tho plaintiff the
ract was n,tdun pdcGfr and In no war obligatory
upon eithcr party The statement msds By the plaintiff
20 White upon which he procured the contract for the
not 20 have been made II may be that there had been
additional 200 shares, without foundaton and ought
a conversation between Lee and the plaintiff 10 lhs
effect stated by the plaintiff aud tho plaintiff may
have Intended fraud upon any one but that docs not
strengthen tho case on his part although 1t may have
the eject Of relieving him from the charge OF misrspre
sentation with fraudulent intent The kresment
signed by White, under mistake NJ least, ~ TO the
fact OF sale made by lee, and that mistake occurred
BY the erroneous statement Of the plaintiff. sTne
trac, Tor that binding upon the company
FAR AZ related 70 the two hundred shares The do
PENDANTS were willing TO rescind. and rendered 10 the
plaintiff the received from him. but hs declined IT.
The judgment rendered for 9 o. damages for the
nondevery OF the two hundred shares at the highest
market ratio between the time when the plaintiff a..
manded 0caee therefor and tho day OF trial. waving
the specific delivery Of the shares This Judgment for
m es
plaintiff upon the ground that tho defendants having
issued certificates for the said shares 20 Lee had rendered
themselves incapable Of specifically performing the
tract By delivering tho shares 70 the plaintiff The rule
stated correct but tho fact has not been shown TO exist
claimed. There 10 proof that the defendants bad
other shares for which they could lawfully suc
tihcass 10 tho plaintiff they under oblg ation
20 TO do la my opinion the judgment should DO re-
versed and trial be had before the referee,
with costs 10 abide event.