Kelley v. Upton
The Superior Court of New York City
This was an action to recover damages, for the breach, by the defendant, of his agreement to purchase from the plaintiffs 3,000 shares of the stock of the Lindsay Mining Company. The defence was, that the stock had not been tendered to the defendant before the commencement of the action.
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This was an action to recover damages, for the breach, by the defendant, of his agreement to purchase from the plaintiffs 3,000 shares of the stock of the Lindsay Mining Company. The defence was, that the stock had not been tendered to the defendant before the commencement of the action. The answer also claimed to set-off $875, the amount of a promissory note, which the defendant had placed in the hands of the plaintiffs, as a security for his performance of the agreement, and which it averred they had collected. The cause was tried before the Chief Justice and a jury, in November, 1855. The…
1Opinion of the Court
By the Court. Oakley, Ch. J.
Notwithstanding the words “I have purchased,” literally construed, may bear the interpretation that has been given to them, we are clearly of opinion, that the contract upon which this action was founded, was not executed, but executory; not an actual and present sale, but an agreement to sell, to be carried into effect on a future day. The intention of the parties, in agreements of this nature, is to be collected from the whole instrument; it is the intention, thus collected, that the court is bound to carry into effect, and in doing so, the literal import of…
2Cases cited3 opinions
- Lupin v. MarieCourt for the Trial of Impeachments and Correction of Errors · 1830
- Houghton v. SwarthoutCourt for the Trial of Impeachments and Correction of Errors · 1845
- Decker v. FurnissThe Superior Court of New York City · 1854
3Cited by16 opinions
- Kauffman v. RaederCourt of Appeals for the Eighth Circuit · 1901
- Mueller v. Putnam Fire InsuranceSupreme Court of Missouri · 1869
- Robinson v. HirschfelderSupreme Court of Alabama · 1877
- Flanagan v. DemarestThe Superior Court of New York City · 1865
- Hubbard v. Rockaway Lunch Co.New York Supreme Court · 1927
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