Mason v. Decker. MASON V. DECKER. (72 N. Y. 595.) Statute of frauds - sale of chattels · memorandum — mutuality — remedies for breach of agreement. A purchaser signed and delivered to the seller a written agreement to buy shares of stock from him on specified terms. The seller did not sign, but orally agreed to sell on those terms. The seller tendered the stock and requested the price, but the purchaser declined to fulfill. In an action to recover the purchase-price, held, (1) that the agreement was valid ;* (2) that this action was maintainable; (3) that the seller might thus sue, or he might sell the stock, apply the proceeds and recover the balance; or retain the stock and recover the difference between the contract-price and the marketprice as damages.t A CTION to recover the purchase price of stock. The opinion. states the facts. The plaintiff had judgment. Samuel G. Courtney, for appellant. The agreement not being mutual, it could not be enforced. U. and S. R. R. Co. v. Brinkerhoff, 21 Wend. 141, 142; Burnet v. Biscoe, 4 Johns. 235, 236; De Zeng v. Bailey, 9 Wend. 337; Livingston v. Rogers, 1 Cai. 584, 585; Cooke v. Oxley, 3 T. R. 653; Chitty on Cont. 15, 16; Add. on Cont. 26; Story on Cont., § 381. Plaintiff could only recover the amount actually lost by him. Dana v. Fiedler, 12 N. Y. 48; Davis V. Shields, 24 Wend. 322; Sedgw. on Dam. (3d ed.) 213, 219; Wilson v. Martin, 1 Den. 602; Weaver v. Darby, 42 Barb. 411; Marshall v. N. Y. C. R. R. Co., 45 id. 502; Braman v. Bingham, 26 N. Y. 483; Scott v. Rogers, 31 id. 676; Bridge v. Mason, 45 Barb. 37; Fishell v. Winans, 38 id. 228; Dustan v. McAndrew, 10 Bosw. 130; Devlin v. Pike, 5 Daly, 85. Wm. H. Scott, for respondent. EARL, J. There was evidence tending to prove, and the jury must have found, the following facts: In April, 1873, the plaintiff * See note to Corbitt v. Salem Gas-light Co., 25 Am. Rep. 543. + See Pittsburgh, etc.. Ry. Co. v. Heck (50 Ind. 303), 19 Am. Rep. 718; Shawhan v. Van Next (25 Ohio St. 490), 18 Am. Rep. 313. Mason v. Decker, and defendant were stockholders in a corporation known as the New York Construction Company. The plaintiff owned 143 shares, the par value of which was $14,300. That corporation was in need of more funds, and a scheme was devised whereby cach of the stockholders were to subscribe an instrument agreeing to furnish $7,000 and receive in payment certain bonds at fifty cents on the dollar. The plaintiff being reluctant or unwilling to subscribe the instrument, and the defendant being desirous that he should, for the purpose of inducing him to subscribe, the defendant agreed with him that if he would subscribe and pay the $7,000, and take the bonds, he, the defendant, would on or before the first day of July next ensuing take all the plaintiff's stock and the bonds, and pay him therefor what the stock and bonds had cost him, with interest. On the faith of this agreement the plaintiff subscribed the instrument, and he agreed to sell his stock and the bonds on the terms proposed by defendant. The defendant subsequently took and paid for ten shares of the stock. Subsequently, the defendant being unwilling or reluctant to carry out his agreement, the parties met on the 30th day of June, 1873, and compromised or changed the April agreement, so that the defendant should be required to take only the stock, and then made an agreement, the terms of which were embodied in the following writing executed by the defendant and delivered to the plaintiff : "I, N. H. Decker, of New York city, agree to buy of Thomas F. Mason, also of New York city, thirteen thousand three hundred ($13,300) dollars of the capital stock of the New York Construction Company of the city of New York, at cost and interest from the several dates on which the installments were paid in; to assume all the rights, benefits, obligations and liabilities arising therefrom, and to pay for the said stock on October 10, 1873, or at my option for the whole or any part, at any time previous thereto, with the understanding that as payments are made the stock shall be transferred subject to my order. Witness my hand the 30th day of June, 1873. N. H. DECKER." At the same time the plaintiff agreed to sell his stock to the defendant upon the terms mentioned in this agreement. At a proper time the plaintiff requested performance on the part of the Mason v. Decker. defendant, and tendered to him the stock. The defendant declined to take the stock, and then this action was commenced. It is claimed on the part of the defendant that the plaintiff cannot recover on the last agreement because it was not mutual, and that there was no consideration expressed in the paper to make the agreement on the part of the defendant binding upon him, for the reason that there was no agreement to sell. But there was ample consideration for the last agreement. The defendant was released from the prior agreement, which had become binding upon him by the part performance thereof, and the plaintiff agito sell and deliver the shares at the time the defendant executed and delivered to him the paper. The agreement of the seller to sell need not be in the paper signed by the purchaser. If the purchaser signs an agreement to buy, and delivers it to the seller, and he agrees by parol to sell upon the terms mentioned in the paper signed by the purchaser, there is a binding agreement which can be enforced against the purchaser. Justice v. Lang, 42 N. Y. 493; s.., 1 Am. Rep. 576; s. c., 52 N. Y. 323, and the opinion by Judge ALLEN in the same case when a third time in this court, not reported. The defendant was therefore bound to take this stock, and the only other important question is as to the amount of the recovery to which plaintiff was entitled in this action. The plaintiff sued for and recovered the purchase-price. He tendered performance on his part, and demanded payment of the defendant. In such a case, it is too well settled to be longer disputed that the plaintiff could treat the stock as belonging to the defendant, and sue for and recover the price agreed to be paid for it. Sedgwick on Dam. (5th ed.) 333; 3 Parsons on Cont. (5th ed.) 208; Des Arts v. Leggett, 16 N. Y. 582; Dustan v. Mc Andrew, 44 id. 72. In this State, in such a case, the seller has the election to consider the property his own, the buyer having forfeited his rights under the contract, or as belonging to the buyer. In the former case his remedy is to sue the buyer for damages for not taking the property, and the measure of his damages is the differerence between the contract-price and the market-price. In the latter case, he may have either of two remedies, to wit: He may sell the property, acting as the agent of the buyer, and apply the proceeds upon the purchase-price, and sue for and recover the balance, if any; or he may sue for and recover the purchaseprice. These two remedies are both based upon the theory that the title to the property by the contract and tender and assent of the seller had become vested in the buyer. This discussion disposes of the most important exceptions taken by the defendant upon the trial. We have carefully considered the other exceptions, and they present no error for which the judgment should be reversed. The judgment should be affirmed, with costs. All concur, except MILLER, J., not voting; ALLEN, J., concurring in result. VOL. XXVIII-95 Judgment affirmed. CASES IN THE SUPREME JUDICIAL COURT or MASSACHUSETTS. OLD COLONY v. MILLER. (125 Mass. 1.) interest on land damages-offset of permissive benefits. An award of damages for the exclusive use of land taken by a railway corpora tion draws interest from the date of filing of the location. A railway was located through a farm, leaving land of the owner on each side. The company acquired the exclusive use of the land taken. Provision was made by the company, for the owner's crossing the location, and for the drainage and flowage of his cranberry meadow thus cut off, he accepting and using the same with the mutual understanding that he had a right so to do. Held, that these facts could not be considered in reduction of the damages, the use of the privileges being merely permissive and subject to the paramount right of the corporation. ETITION to the Superior Court, alleging that the petitioner was PETIT aggrieved by an award of the county commissioners, allowing $875 as damages caused by the location and construction of the petitioner's railroad over the land of the respondent, and praying for a jury to assess such damages. It appeared that the location of the railroad crossed the respondent's farm, cutting off between three and four acres of cranberry bog, to which he had no access except by crossing the location. The petitioner requested the judge to instruct the jury that if they found that, when the petitioner constructed its road through |