Sawyer v. McRoskey
Before: Lennon
Synopsis
Action fob Price op Stock—Order Granting New Trial—Issue op Delivery and Sale—Conflict op Evidence—Affirmance op Order. An order granting a new trial in an action to recover the purchase price of corporate stock alleged to have been sold by plaintiff to defendant, and which the defendant claimed had never been delivered, and if so, the sale had been rescinded, will not be disturbed on appeal, where the motion was based upon all the statutory grounds, and the evidence adduced upon the whole case created a substantial conflict on the issue of delivery and sale.
Id.—Order Granting New Trial—Conflicting Evidence—Appeal.— An order granting a new trial will not' be disturbed on appeal, where the motion was made on all the statutory grounds, including the insufficiency of the evidence to support the findings, and the evidence shown to be in substantial conflict.
[490]
LENNON, P, J.
This was an action for the purchase price o£ fifty-one shares of a certain corporation alleged to have been sold by the plaintiff to the defendant. The defense was that there was no delivery and that there was no sale; and that if there had been a sale the 'sale was rescinded. Upon the trial of the case, the plaintiff’s evidence tended to show that there had been a delivery of the stock and a subsequent refusal to pay for the same. Upon behalf of the defendant there was some evidence tending to show that there had been no delivery. The trial court made its findings in favor of the plaintiff, finding that there had been a delivery and a completed sale. A motion for a new trial was made by the defendant based upon all the statutory grounds, including the insufficiency of the evidence to support the findings, which motion was granted. The appeal is from the order granting such motion, and in its consideration of course all of the grounds of the motion are involved in order to test the correctness of the order. Do you concede, Mr. Sawyer, that there was evidence adduced upon the trial in the court below sufficient to have supported a finding in favor of the defendant ?
Mr. Sawyer (Plaintiff in Person) : No.
Mr. Presiding Justice Lennon: The evidence is conflicting?
Mr. Sawyer: I hardly think so. The evidence shows by the defendant’s own testimony—by Mr. Dam’s testimony in the matter, that there was a delivery of the stock.
Mr. Presiding Justice Lennon: Conditional?
Mr. Sawyer: Well, that may be.
Mr. Presiding Justice Lennon: That creates a conflict, does it not?
Mr. Sawyer: Is it a substantial conflict in the face of an agreement to pay five hundred dollars and the defendant- repudiated his contract? The stock was actually delivered to Mr. Dam, and he was to pay the five hundred dollars the next morning. Mr. Sawyer went to Mr. Dam’s office for the five hundred dollars, and immediately the contract was repudiated. A party who repudiates his contract by refusing to pay cannot rescind.
Mr. Presiding Justice Lennon: But Mr. Dam was not the purchaser; he was merely the attorney for the purchaser; and his testimony was to the effect that the stock was delivered to him conditionally and not absolutely.
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