
    George Wood, Respondent, v. Quincy Ward Boese, Appellant.
    Second Department,
    December 30, 1909.
    Contract — sale of stock — evidence — oral guaranty against loss—proof not establishing merger in written contract.
    In an action to recover on an oral contract of guaranty, the plaintiff alleged that the defendant, in selling him 10,000 shares of stock, agreed that he should, in no event suffer any loss. It was further agreed that the defendant should share in the profits, and that the stock should only he sold upon his advice and consent. The defendant introduced a letter written by him to plaintiff on the next day offering, in consideration of one dollar and other valuable consideration, to deliver 10,000 shares of stock at one dollar and fifteen cents per share, provided plaintiff would consent to act as a director of the company. The plaintiff replied, acknowledging “ Your favor containing option,” and stated, “ I have no reason to doubt but that I will be able to make good on your proposition. Kindly let me know what is the longest time I can have to do so.” It appeared that the plaintiff never bought any of the stock in question at one dollar and fifteen cents, but did purchase 10,000 shares at eighty-five cents. There was no proof that the letters did not refer to a separate transaction.
    
      
      Held, that the plaintiff’s answer to the letter was not an acceptance of the defendant’s offer nor an acknowledgment of the consideration recited;
    That as the letters contained no reference to the conversation of the day before and it was not shown that they did not refer to a separate option, evidence of the oral contract of guaranty was admissible.
    Bunn and Jenks, JJ., dissented, with memorandum.
    Appeal by the defendant, Quincy Ward Boese, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 28th day of May, 1909, upon the decision of the court rendered after a trial at the Dutchess County Trial Term before the court without a jury.
    
      Henry de Forest Baldwin, for the appellant.
    
      Charles Morsehauser [Frank B. Lown with him. on the brief], for the respondent.
   Woodward, J.:

The plaintiff brings this action to recover upon a contract of guaranty alleged to have been made by the defendant in selling him certain shares of stock in the Bed Bock Silver Mining Company. There is no dispute that the defendant sold to the plaintiff 10,000. shares of stock of the said company in the year 1906, and received therefor the sum of $8,500. The plaintiff’s claim is that on the 21st day of November, 1906, lie entered into an oral contract for the stock in question, arid that he was induced to take the same upon the agreement of the defendant that the plaintiff should in no event suffer any loss, it being likewise agreed that the defendant should share in the profits which it was expected would result from the transaction, and it being alleged by the plaintiff that the stock was not to be sold except upon the advice and consent of the defendant. On the 22d day of November, 1906, the defendant wrote a letter to the plaintiff, in which it was proposed that, “in consideration of one dollar and certain other valuable consideration, at any time as soon as delivery can be made to me, and upon receipt of payment therefor, I will deliver to you ten thousand (10,000) shares of the capital stock of The Bed Bock Silver Mining Company, Limited, at the rate of $1,15 per share, it being understood that you will consent to act as one of the directors of the said company,” and it is the contention of the defendant that this constituted such a' written ■ contract as precluded the plaintiff from introducing parol evidence of the alleged purchase. The case hinges upon this contention,, for it does not seem to be open to serious dispute that the evidence in the case is sufficient to warrant the findings of the trial court in favor of the plaintiff’s contention. On the 30th day of November, 1906, the plaintiff wrote in answer to the above letter': “Tour favor containing option, etc., duly received. Would have written you before, but expected to have seen you. I have no reason to doubt but that I will be able to make good on your proposition. Kindly let me know what is the longest time I can have to do so.” This clearly was not an acceptance of the defendant’s proposition, or an acknowledgment of the consideration recited, and the evidence discloses that the plaintiff never in fact bought any of the stock of the Red Rock Silver Mining Company at one dollar and fifteen cents per share, the transaction here under consideration having been closed «at eighty-five cents per share. . So far as we can discover from the record there is nothing to show that this was not a separate option, as the plaintiff refers to it, to purchase. 10,000 shares of stock. It makes no reference to the conversation of the day before, where the plaintiff contends that he arranged for the purchase, with the guaranty, and the effort to intrude this letter as the contract of the twenty-first, and to exclude parol evidence, does not appeal to. us. It looks like an afterthought, to avoid the obligations, of the contract which had not resulted as the defendant believed it would at the time it was made. '• We think the learned court ruled correctly in receiving the plaintiff’s evidence, and that the result reached is in harmony with the evidence and the law.

The judgment appealed from should be affirmed, with costs.

Rich and Millee, JJ., concurred; Bürk, J., dissented on the ground that the letters, Exhibits 1 and 2, relate to the sale of . the 10,000 shares of stock which glye rise to this controversy, and not to a separate option. • That being so, to permit oral evidence of a guaranty would not be evidence of an independent oral contract, •but evidence to vary the ternis of the written contract as to the consideration to be paid; Jenks, J., concurred.

Judgment affirmed, with costs.  