
    Sir Roderick W. Cameron, Pl’ff, v. Charles H. Tompkins, Def't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 13, 1893.)
    
    1. Statute of frauds.
    Plaintiff wrote defendant requesting him to relieve him of his stock in a certain corporation by paying the price paid for the same; defendant answered by letter that he would do so on a certain day, but the shares were not taken on such date, and thereafter a note for $5,000 was executed by defendant and delivered to plaintiff in consideration of an oral agreement between the parties that on the date the note became due the defendant would purchase plaintiff’s stock. The note was not paid, although the stock was tendered at the time payment was demanded. No mention of the note or amount to be paid was made in the letter. Held, that the oral agreement was void under the statute of frauds and the note was without consideration.
    2. Bills and notes—Evidence.
    In the action on such note it was not competent for plaintiff to show by oral evidence that the note was given for the purchase price of the shares, and though the fact was proved without objection, and also by the defendant, it did not validate the contract; and the defendant having pleaded the statute of frauds was in a position to take advantage of the fact.
    3. Pleading—Reply.
    Where plaintiff, by his reply, had expressly excepted from his denial certain facts, he was not entitled to prove that such facts were not as alleged in the answer.
    Motion for new trial on exceptions ordered beard at general term in the first instance.
    
      Peter B. Olney, for pl’ff; Burton N. Harrison, for def’t.
   Follett, J.

At the close of the trial the plaintiff asked the court to direct a verdict in his favor, and the defendant moved that a verdict be directed in his favor. The court granted the plaintiff’s motion, and the defendant excepted, and thereupon the defendant’s exceptions were ordered to be heard at the general term in the first instance. This action was brought on a promissory note, of which the following is a copy :

“$5,027.50. New York, 14th March, 1890.
“ Fifteen days (without grace) after date, I promise to pay to the order of Sir Roderick W. Cameron five thousand & twenty-seven 50-100 dollars, at Hanover National Bank, New York. Value received.
“O. H. Tompkins.
“Due March 29, 1890.”

The defendant admitted the making, delivery, and nonpayment of the note, and alleged that it was given in consideration of an oral agreement between the litigants that the defendant would on the 29th of March, 1890 (the date when the note fell due), purchase of the plaintiff certain shares of stock, on delivery of the certificates properly signed, which it is alleged the plaintiff did not do, and that the oral agreement was void under the statute of frauds, and the note was without consideration. This note arises out of the following transaction: The defendant was the owner of shares, or was engaged in procuring subscriptions for unissued shares, of the Idaho Mining & Irrigation Company, a domestic corporation, and on the lSth of November, 1889, the plaintiff acquired from or through the defendant 784 shares of the stock for $5,000, and on the same day a certificate for 484 shares was issued to E W. Cameron & Co., and another certificate for 800 shares to E. McLeod Cameron, the plaintiff’s son. The agreed price of the shares was paid on or about the date of the certificates. In -January, 1890, the defendant orally agreed that he would at some future date take back the shares and repay the purchase price. On the 24tli of January, 1890, the plaintiff wrote the defendant as follows :

“ E. W. Cameron & Co., 23 South William Street.
“ New York, 24 January, 1890.
“ General C. H. Tompkins—Dear General: Agreeably with your considerate promise to relieve me of my subscription to the Idaho Irrigation Co., I ask you to make an entry of it in your journal, and kindly write me a reply, naming a date on which you will repay me the amount. I do not seek any interest on the amount paid, but, if you will include my son’s subscription-also, it would be a favor. Your proposition was 30 days from the 7th instant, but, if you prefer to extend the time, you can make it from this date. I am,
“ Faithfully yours, E. W. Cameron.”

The defendant received the letter, and indorsed thereon, “ Be-plied Jan. 30, ’90, agreeing to take stock by 24th Feby.” The following is a copy of the defendant’s answer:

No. 15 Cortlandt Street, New York, 30th Jany., ’90.
“ Dear Sir Boderick: I beg to acknowledge your favor of 24th inst., and in reply to state that I will undertake to accede to your request to relieve you and your son of your subscriptions to the stock of the Idaho Mining & Irrigation Co. on or before Feby. 24th, 1890.
“ Very truly yours, C. H. Tompkins.
“ Sir Eodericlc Cameron.”

The shares were not taken back on the 24th of February,' 1890, and other conversations were had on the subject between that date and March 14, 1890, when the parties met, and the note in suit was executed and delivered. The certificates for thé shares were not present when the note was executed, and have never been delivered to the defendant, although they were tendered at the Hanover Bank on the date the note fell due and payment was demanded. The principal question presented on this appeal is, was there a sufficient memorandum in writing to save the contract from the condemnation of the third section of the statute of frauds,” which provides:

“ Sec. 3. Every contract for the sale of any goods, chattels or things in action, for the price of fifty dollars or more, shall be void, unless (1) a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby; or (2) unless the buyer shall accept and receive part of such goods, or the evidence, or some of them, of such things in action; or (3) unless' the buyer shall at the time pay some part of the purchase money.”

A contract to sell shares of stock in a private corporation is within the third section of the statute of frauds of the state of New York. Johnson v. Mulry, 4 Rob., 401; affirmed 51 N. Y., 634; Baltzen v. Nicolay, 53 id., 467, 470 ; Brownson v. Chapman, 63 id., 625 ; Dos Passos Stockbrokers, etc., 765 ; Cook Stock & S., § 339; 1 Reed St. Frauds, § 234. The defendant did net accept the certificates for all or any of the shares : nor were they or any of them assigned to him at the date of the agreement to sell, nor at any time thereafter; nor were they or any of them transferred to him on the books of the corporation, and no part of the purchase money was paid by him. The contract is not valid under the second or third subdivision of the section, and the defendant cannot be held liable to pay for the shares unless there is a sufficient note or memorandum in writing to satisfy the requirements of the first subdivision. The only memoranda relating to the sale which were introduced in evidence are the letters before quoted and the note on which the action was brought. The letters referred to each other, and may be read together, but it will be observed that the price at which the shares were sold is not stated in either letter. The promissory note is not referred to in the letters, and there is nothing in them or in the note showing that the sum for which the note was given represents the price of the shares, or, indeed, that the note arose out of the transaction.

The only way in which we are informed that the note was given for the agreed price of the shares is by the testimony given on the trial. It was not competent for the plaintiff to show by oral evidence that the note was given for the purchase price of the shares, and though that fact was proved without objection, and also by the defendant, it did not validate the contract; and, the defendant having pleaded that the contract out of which the note arose was void by the statute of frauds, he is in a position to take advantage of the fact. In order to satisfy the requirements of the third section of the statute of frauds, all of the material provisions of the contract must be contained in some note or memorandum; and, in case any material provision is omitted from the writing or writings, its terms or the nature of the provision cannot be established by testimony. Wright v. Weeks, 25 N. Y., 159; Stone v. Browning, 68 id., 598; Drake v. Seaman, 97 id., 230; Mentz v. Newwitter, 122 id., 491; 34 St. Rep., 207.

As before stated, the price at which the shares were sold is not disclosed by the memoranda, which is a material provision of a contract for the sale of goods or choses in action. In case goods or choses in action are sold at an agreed price of fifty dollars or more, the memorandum of sale must disclose the price at which sold in order to satisfy the requirements of the third section of the statute of frauds. Stocker v. Partridge, 2 Rob. 193; German v. Machin, 6 Paige, 288-292; Newbery v. Wall, 65 N. Y., 484-488; Stone v. Browning, 68 id., 598-604; Williams v. Morris, 95 U. S., 444-455; Smith v. Arnold, 5 Mason, 414; Johnson v. Buck, 35 N. J. Law, 338-343; Welsh v. Bayaud, 21 N. J. Eq., 186; Carr v. Passaic L. I. & Bldg. Co., 19 N. J. Eq., 424; Elmore v. Kingscote, 5 Barn. & C., 583; 8 Dowl. & R., 343; Acebal v. Levy, 10 Bing., 376; Hoadly v. McLaine, id., 482; Goodman v. Griffiths, 1 Hurl. & N., 574; 1 Benj. Sales (Corbin’s Ed.), §§ 249-251; Blackb. Sales (2d Eng. Ed.), 59; 1 Reed St. Frauds, § 417 ; Browne St. Frauds, § 381 et seq. When a price is not agreed on, the circumstances may be such as to justify the assumption that the goods were to be sold or the work to be done at a reasonable price, but this rule does not apply to a case where the price was agreed on. Argus Go. y. Mayor, etc., 55 N. Y., 495, and the authorities above cited. The contract proved, which was the consideration for the defendant’s promise, was void under the statute of frauds, and the plaintiff, under the evidence contained in this record, was not entitled to recover. The answer contains this allegation:

“ Defendant further alleges that the plaintiff did not on said 29th day of March, 1890, demand of defendant that defendant make such purchase, and that plaintiff did not on said day tender to defendant said shares of stock, or the certificate or certificates, by said corporation theretofore issued for and representing said shares, and then held by plaintiff, and that plaintiff did not on said day offer1 to deliver said certificate or certificates to defendant properly indorsed for transfer.”

This allegation is contained in the defendant’s second defense. The plaintiff served a reply, which contains the following denial: “ The plaintiff denies each and every allegation contained in the defendant’s second and separate defense, the counterclaim herein, except that portion thereof wherein defendant alleges that on the 29th day of March, 1890, plaintiff did not demand ‘ of defendant that defendant make such purchase, and that plaintiff did not on said day tender to defendant said shares of stock, or the certificate or certificates of said corporation theretofore issued for and representing said shares, and then held by plaintiff, and that plaintiff did not on said day offer to deliver said certificate or certificates to defendant, properly indorsed for transfer.’ ” -

On the trial the plaintiff was permitted to prove that he tendered the certificates for the shares at the Hanover National Bank, March 29,1890, when the note fell due and was presented for payment. The defendant objected to this testimony, on the ground that it contradicted the reply, which objection was overruled, and an exception was taken. The plaintiff did not ask to amend his reply, nor that he be relieved from his admission. The defendant had the right to rely on this admission, and he was under no obligation to be prepared with evidence to meet this question. The reception of this testimony was error. The defendant’s exceptions must be sustained, and the verdict set aside, and a new trial granted, with costs to the defendant to abide the event.

Van Brunt, P. J., and Parker, J., concur.  