McCoy v. Milbury

On appeal from the Supreme Court. The suit was upon an alleged oral understanding by defendant to protect plaintiff against any loss that might be incurred by her purchasing certain mining stock at defendant’s suggestion as claimed. The stock deteriorated in market value, and plaintiff called upon defendant to indemnify her. It was disputed whether he had ever agreed to indemnify her, and also whether there was aim liability on such alleged agreement. Finally, the parties came together and executed an agreement intended to adjust their differences, but containing a clause that plaintiff reserved the right to terminate it at any time on giving a specified notice. Such notice was given after defendant had repurchased a considerable amount of the stock under the agreement and plaintiff sought by her suit thereafter brought, to hold defendant on his alleged original undertaking. Plaintiff had a verdict, which on rule to show cause was set aside by the Supreme Court in the following per curiam; “Among the matters that the court left to the jury was the question whether the agreement of April 8th, 1911, was an entirely'’ new agreement; that it was to take the place of, and did take the place of, anything that had gone before. We think this was not a jury question. The making of the agreement was undisputed, and there can be no question that it was intended as a compromise and settlement of the matters in difference between the parties. Tf so, as the court properly charged, it put an end to any pre-existing liability of the defendant. The option of revocation given to Miss McCoy at the end of the agreement did not operate to revive any such pre-existing liability', hut was to guard against any obligation on her part to return unredeemed stock if she chose to retain it. “The effect of the agreement of 1911 being to supersede prior relations of the parties, as a court question, the trial court should have directed.a verdict for the defendant. “This result makes it unnecessary to discuss any of the other grounds for new trial that were argued. “The rule to show cause will he made absolute.” The case went back for a second trial, at which the printed hook of the evidence at the first trial was submitted as the evidence in the case, and thereupon the trial judge.following the intimation of the Supreme Court directed a verdict for the defendant, and plaintiff appealed to this court. This agreement in question is as follows: Agreement between Emma A. McCoy, of New Brunswick, N. J., and Arthur W. Milbury', of Hoboken, N. J., dated Saturday', April 8th, 1911. ’ Whereas, Emma A. McCoy, of New Brunswick, purchased and became the possessor of five thousand six hundred (5,-600) shares of stock of Douglass Mining Company of South Dakota, and paid two thousand dollars ($2,000) for the same (fifteen hundred dollars ($1,500) on or about May 28th, 1907, and five hundred dollars ($500) on or about August 7tli, 1907), which makes the said stock cost something less than thirty-six cents ($0.36) per share, and Whereas, the business of the Douglass Mining Company lias not proved profitable, and Whereas, the seller of the aforesaid stock, Arthur W. Millurry, voluntarily and of his own free will, desires to refund flie investment of $2,009 made by the said Miss 'McCoy, now therefore Tt is hereby agreed: (1) that the said Milbury will repurchase the said 5,600 shares at the rate of thirty-six (0.36) per share, paying therefor from time to time as lie may be financially able; (2) that the said Miss McCoy will transfer and deliver to the said Milbury or his assigns, or in blank as lie may direct, an equivalent amount of said stock at thirty-six cents per share for each and every payment that shall be made by said Milbury to said Miss McCoy under tliis agreement; (3) that the said Milbury has this day paid the said Miss McCoy five hundred and forty dollars ($540) in cash, the receipt of which is hereby acknowledged by the said Miss McCoy, and that the said Miss McCoy has this day transferred and delivered to the said Milbury certificates for fifteen hundred (1,500) shares of said stock, the receipt of which is hereby acknowledged by the said Milbury; (4) that when all payments made by the said Milbury shall aggregate two thousand dollars ($2,000), then the said Miss McCoy shall transfer and deliver to the said Milbury the entire balance remaining o£ the said five thousand six hundred shares; (o) that the intent and understanding of this agreement is that the said Milbury shall pay the said Miss McCoy a total of two thousand dollars ($2,000), of which five hundred and forty dollars ($540) has been paid this day, and that the said Miss McCoy shall transfer and deliver to said Milbury a total of five thousand six hundred sitares of stock of said Douglass Mining Company, of which one thousand five hundred sitares have been transferred and delivered this day; (6) that the said Emma A. McCoy reserves the right and power to terminate this agreement at, any time, hut that such termination shall not be valid unless written notice of same shall have been delivered to said Milbury by registered mail; (?) ihai the said Milbury shall pay all costs connected with carrying out this agreement, including cost of transfer of stock. This agreement is executed in triplicate this 8th day of April, 1911. Witnessed bjr: G. A. Allen, Arthur W. Milbury, Elizabeth A. Allen, Emma A. McCoy.