The New York herald., 1870-09-09
MARINE C0unT-2ART !.
. s'o'I-'oabins Transac.ien lion. Important Le-
,sz cal Decision.
Ss Before Judge Curtis.

> s'o'k-'ohbina Transaction Important Le-
,e4 cal Decision.
N~ Before Judge Curtis.
HOrldnd rs. RObiilsOn.--Ths was an action to re-
cover sum Of $775, claimed TO be due to plaintiff
on o stock k-jobping transaction. The circumstances
as set forth in the complaint appear to have been
ss follOws:On the 10th day OF August, 1868, plain
tin alleges that he made contract with defendant
to sell to the latter 1000 shares Of the stock OF the
Erie Railroad Company at 4ex per cent on the par
value thereof deliverable the next day, and the de-
sendanf agreed to buy said stock Of the painri and
pay thereon according TO agreement. On the fO!-
lowing day the parties met, when Il was found that
s need 'H, ~ deliver to As Us ssss sssn as as ssresS Cd
sS q a es ess o hs H2S gsy i
lieu OF receiving said stock. to which plaintif
agreed. The amount thus accruing- was sf75, for
which the action IL now brought. 1t was further
alleged that defendants frequently promised to pay
This sum but had failed TO do so. Plaintiff put in
evidence brokers memorandum OF the sale 10y him
10 the parties OF one thousand shares OF Erie, being
the thousand shares referred TO in the action.
The defence denied all the allegations in the COM
plant, and further c0nterded that no note or memo
ral.Jum in writing was ever made OF said pretended
contract or for the sale or purchase of shares he
tween The parties; nor did the defendant at any
time receive accept the shares in question: any
portion OF them; nor did he al any time
pay or promise to pay, any part OF the
purchase money therefor; and further, that The
tion was unenabe, he defendant never having re-
ceved any consideration IN the alleged contract.
Tie who,e case turned on point OF law on which
counsel or tts- defendant moved that The case Le
~-vfIsmSsen. 1ne case having been fully argued by
counsel ON the legal aspect, was submitted FOR the
JUDGE CURTIS DECISION.
Judge Curtis, la decding on tue motion to dismiss
said that the question here was not whether the de-
tendant had made this contract, OF which there
you'd be no doubt, but whe her he could be COM
1eed by law to carry out his contract, as against
e point OF law raised by his counsel On the latter
Joint, Involving Question Of considerable import
NON TO consider was whether the transac.
son between these parties here comes under
M within the s,a,u,e OF frauds. II II
statute: Every contract for the OF any goOds,
chattes, or things in action OF the value OF hrty
dollars more, Is void unless note or menorari-
DUN OF such contract be made In writing and he
signed or subscribed by the parties to be charged
ary o NE sued ndvdnav was ts ,o oe ts hs
tween him and the planin WITHIN the statute o
frauds or not' The evidence shows thai all the
memoranda In the case vas u single memorandum.
signed not by the party 10 be charged or his ageD
aching within the scope and channel OF his authority
seeks TO recover. That Is not the language OF III,
statute OF frauds. On the contrary, i
requires and demands that 1t shall be signe,
the point cited, 4th Robinson, simply raised III
anestlon whether the agent of the party, Alter
was proved that he was such agent, acting With
the scope Of his AUTHORITY could b nj MS principal
although tine principal did not sign or subscribe th
memorandum himself; but me agent uii 80 sign !
IN his own name. Here Is the Instruction, and I'll
same general distinction Is observed Ia tie case ie
feried 10 in the Court OF Appeals. Had the counss
proven that tile memorandum OF agreement ha
beer, signed by the defendant, iiOblnson or by all
agent OF MS that would bring the Case wi'nin tu
pale OF these decisions. tsce attn Robinson cast
Johnson VS.. Mueck; also case OF Dykei vs. Iowi
send, 1y,Smith, Court of Ape Is Reportal lfc SUI
scrlDtlon by the agent of the party 70 y
charged brings it under the statue Cl iraud
attn Cuuh the name on existence q the -princip;
s,ocs nat appear 10 the instrument. 10 avoid Col
tract ~ against stock ioDDIng account, the ouiue
0j proof Is on the party alleging the volatloIl b.
AheseN q clsay Qlstpctlvn between .AfsS SaadSEa ~