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Pardee v. Douglas

Appellate Division of the Supreme Court of New York, Second Department
Nov 22, 1907
122 App. Div. 395 (N.Y. App. Div. 1907)

Opinion

November 22, 1907.

C.A. Mountjoy [ John J. Vause with him on the brief], for the appellants.

Henry H. Abbott, for the respondent.


The controlling facts come down to just this: The Syndicate Petroleum Company had a contract with Spellacy McCay, by which the latter undertook to bore an oil well for it 1,000 feet deep, unless oil in paying quantities should be obtained at a lesser depth. To get the funds to pay for the work as it progressed the said company entered into a contract with the defendants whereby the latter agreed to furnish the money and pay it to the said Spellacy McCay as their payments came due for the work, and the former agreed to deposit certificates for 100,000 shares of its stock with a specified bank to be transferred from time to time by said bank to the defendants at the rate of five cents a share in payment of the money they should pay to Spellacy McCay on vouchers approved by the said Syndicate Petroleum Company. The stock was deposited with the bank, but the defendants broke the contract and never paid any money under it. The said company then proceeded to bore a well but it collapsed and became worthless after being sunk about 500 feet. The cost was $3,222.06.

What is the said company's measure of damage for the defendants' breach? The referee allowed the said $3,222.06. This was error. The measure was the excess of the cost of boring the well agreed upon over the value of the 100,000 shares of stock ( Laraway v. Perkins, 10 N.Y. 371). Under the judgment in this case the company has the stock and is also given the amount of the expense of boring the well that failed. As there was no evidence of the value of the stock only nominal damages could have been given.

The judgment is based on the theory that the contract sued upon was an executed contract, i.e., wholly performed by the said company, in that the shares of stock were actually delivered to the defendants by being deposited with the bank, and are theirs, which is not so.

The judgment should be reversed.

WOODWARD, RICH and MILLER, JJ., concurred; HIRSCHBERG, P.J., not voting.

Judgment reversed and new trial granted, costs to abide the event.


Summaries of

Pardee v. Douglas

Appellate Division of the Supreme Court of New York, Second Department
Nov 22, 1907
122 App. Div. 395 (N.Y. App. Div. 1907)
Case details for

Pardee v. Douglas

Case Details

Full title:JOHN J. PARDEE, Respondent, v . H. HOWARD DOUGLAS and Others, Doing…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 22, 1907

Citations

122 App. Div. 395 (N.Y. App. Div. 1907)
106 N.Y.S. 775