Cole v. Wendel
New York Supreme Court
THIS was an action of assumpsit. The declaration . J contained a count for 60 shares of stock in the bank -of Hudson, "sold and delivered, for 1,000 dollars; and a quantum valebant thereon.
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THIS was an action of assumpsit. The declaration . J contained a count for 60 shares of stock in the bank -of Hudson, "sold and delivered, for 1,000 dollars; and a quantum valebant thereon. There was also a count on a written contract, signed by the defendant, dated July 28, 1809, as follows; “ I promise hereby to take from Mr. Peter Cole, sixty shares of the stock in the bank of ,Hudson, if legally transferred to me, for which I promise to deliver him his note of six hundred and sixty-seven dollars, and pay the balance, in cash, on said stock ; and I promise to pay an advance of 5 per cent,…
1Opinion of the Court
Spencer, J,
delivered the opinion of the court. The only question presented by the case is, whether it was competent to the plaintiff to explain, by parol, whether the 5 per cent. advanced on the shares, was to be on the sum then actually paid in, (which was 10 dollars on each share,) or on the nominal amount of the shares. The terms of the contract are equivocal, and the ambiguity is a latent one ; as such, and on the strictest principles, the circumstances of the case may be proved and taken into consideration, in determining how the S per cent, advance was to be calculated. (Peake's Evid.…
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