Buechler v. Pickrell

Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. There is dispute between the parties concerning what occurred on May 4, 1929, when, as plaintiff claims, there was a sale and delivery of the certificates of stock. Whether the transaction culminated in a sale, or an accepted agreement to sell, is, under the circumstances, a question of fact. It rests with a jury to determine not only the facts as to whether the minds of the parties actually met but also the intention of the parties at the time in relation to their acts. (Pers. Prop. Law, §§ 99, 100, rule 1, §§ 122,123; Groves v. Warren, 226 N. Y. 459, 466.) The conflicting testimony permits no clear conclusion, as a matter of law, that the shares of stock were indorsed, delivered and accepted for a sum agreed upon, with only the delivery of a cheek in payment lacking to complete the transaction. Likewise, it is a question of fact whether the plaintiff so dealt with the stock subsequently that he waived or abandoned the sale he claims to have made to the defendant, or that he knew that he was dealing with the defendant as an agent for a disclosed principal. It was, therefore, ■ error to dismiss the complaint. Lazansky, P. J., Kapper, Hagarty, Tompkins and Davis', JJ., concur.