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Walker v. Thomsen

102 N.Y.S. 1149 Court N.Y. App. Term Decision date 1907-02-11 English

Decision Majority — PER CURIAM. · Dissent — MacLEAN, J.

Contents

Majority

p. 1149
WALKER, Appellant, v. THOMSEN et al., Respondents.
(Supreme Court, Appellate Term.
February 11, 1907.)

Headnote

Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by Thomas S. Walker and others against Carl Thomsen and another. From a judgment for defendants, plaintiff appeals. Affirmed. W. E. Dressier, for appellant. Strasbourger, Weil, Bschwege & Schallek, for respondent.

Judgment affirmed, with costs.

(dissenting.) It seems to be undisputed that the defendants, as sellers, signed and retained one of two contracts, signed by purchasers, for the purchase of certain real estate, received a check for $500, and signed and delivered the other (a duplicate) to the plaintiff. The minds of the parties thus met.

Dissent

p. 1150
That the defendants, a few minutes later, asked for the copy delivered to the plaintiff, in order to compare with their own, and then deliberately destroyed it, and the next day returned the check, because they discovered that a second mortgage was at 5 instead of 6 per centum, would not justify a finding that minds had not met, nor a judgment for the defendants as acting within their rights, When offer and acceptance were complete, as they were herein, recall might not under the circumstances be exercised at the end of 10 minutes any more than at the end of 10 days. From the evidence the plaintiff was entitled to his commissions. The judgment should therefore be reversed, and a new trial ordered, with costs to appellant' to abide the event.