Sherwood v. Graves — 31 N.Y.S. 660

Majority

p. 660

SHERWOOD v. GRAVES.

(Supreme Court, General Term, Second Department.

December 10, 1894.)

Headnote

Contracts—Proof of Performance.

Defendant employed plaintiff to purchase the securities of and liens on a bankrupt railroad, and, under negotiations conducted by plaintiff, defendant purchased a large amount of such securities. Held sufficient to show an acceptance by defendant of "plaintiff’s services, and plaintiff was thereby relieved of the necessity of proving full performance.

Appeal from circuit court, Kings county.

Action by Robert H. Sherwood against Maitland E. Graves.. From a judgment entered on a verdict in favor of plaintiff, and from an order denving a motion for a new trial, defendant appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.

p. 661

Lowrey, Stone & Auerbach (Frederic A. Ward, o£ counsel), for appellant.

William. B. Putney (Henry B. Twombly, of counsel), for respondent.

This is an appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury. The action is to recover for services rendered by the plaintiff in procuring for the defendant the purchase and acquisition of the securities of and the liens upon a bankrupt railroad on Staten Island. There is no question that the contract was an entire one, and that the plaintiff was bound to prove a full performance of the contract, or a waiver by the defendant as to any deficiency, or that such deficiency was due to the fault of the defendant. So the trial judge charged. It was not error to submit the question of the terms of the contract to the jury; at least, by the submission no harm was done to the defendant. It may be conceded that the letters of February 29th constituted the original contract between the parties, and such contract, being in writing, was to be construed by the court, and not by the jury. But this was not the contract 'under which the services were rendered. The defendant himself testifies that, after the original proposition on the $65,000 basis (that is the one contained in the letters), the plaintiff told Mm he could not get the road on that basis, and that then he told the plaintiff to go ahead and do the best he could. Thus, there was a new contract between the parties, resting in parol; and from that time it was not necessary that the plaintiff should obtain the securities of the road at a gross price of $65,000. It was sufficient that he should obtain them at a price satisfactory to the defendant. There was evidence showing that the defendant took up the great mass of these securities under negotiations made by the plaintiff with their holders. This was sufficient to show an acceptance by the defendant of the plaintiff’s services, and his approval of the price. The case was therefore properly for the jury, and we find no error in the charge by which it was submitted to the jury. The judgment and order denying motion for a new trial, appealed from, should be affirmed, with costs. All concur.