Fourth Department, March, 1911. [Vol. 143. shares of stock in said laundry company issued to the plaintiff. The certificates were not assigned or indorsed, although subject to a lien enforcible for the payment of the indebtedness mentioned. There was nothing in the contract by which the defendants, or either of them, was to loan money to the plaintiff, or that the certificates of stock were to be delivered to them, or either of them, to secure this indebtedness. That transaction was entirely independent of the one which is the foundation of this action. In any event the holding of the certificates of stock as collateral did not dispense with the necessity of the notice prescribed in the agree ment. The plaintiff appreciated the necessity of serving the notice in performance of his part of the agreement before its violation by the defendants could be charged. He served a notice in recognition of this obligation in order to require the defendants to purchase the stock. The difficulty is, the notice was not the one the contract prescribed. There was nothing in the note transaction changing the plain provisions of the agreement and no waiver can be spelled out of it. There was no severance of the liability of the defendants thereby. The rights of the parties were still to be determined by the contract itself. As already noted, each defendant did have a lien on the certificate of stock which he held. In case the note was not paid he could have foreclosed his lien. That right, however, was in no way connected with the written contract upon which this action is based. Had he served the proper notice upon the defendants and they had omitted to purchase the stock as they were bound to do by the agreement, if properly notified, the plaintiff would have adopted the same course that he did prior to the commencement of this action, that is, pay the notes and obtain the certificates of stock so that upon the enforcement of any judgment he might obtain the certificates would be delivered to the party entitled to the same. The judgment should be reversed. All concurred, except MCLENNAN, P. J., and WILLIAMS, J., who dissented upon the ground that the notice served was sufficient. Judgment and order reversed and new trial ordered, with costs to appellants to abide event. App. Div.] Fourth Department, March, 1911. RUFUS M. CHOATE, Appellant, v. George S. Beebe, Respondent. Contract Fourth Department, March 8, 1911. - agreement to sell stock-evidence -- identifying stock. In an action to recover for breach of a written contract to transfer certain stock it is reversible error to exclude evidence as to the amount of the capital of the corporation and the par value of its stock at the time the agreement was made, which evidence was offered by plaintiff for the purpose of identifying the stock to be transferred, and to show that the certificate offered by the defendant in attempted performance of the contract did not represent said stock. An agreement to sell certain shares of the stock of a corporation implies that they shall be stock of the corporation as then capitalized. APPEAL by the plaintiff, Rufus M. Choate, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 12th day of July, 1910, upon the verdict of a jury rendered by direction of the court. Gordon F. Matthews, for the appellant. Clinton L. Horton, for the respondent. SPRING, J.: On the 15th of September, 1906, the parties entered into the following written agreement: "It is hereby agreed by and between Rufus M. Choate of Buffalo, N. Y., and George S. Beebe of Silver Creek, N. Y. Said Choate to sell said Beebe 297 shares of Silver Creek Gas and Improvement Company stock for the sum of One ($1) Dollar, and twenty shares of the Hanover Telephone Co. stock, Main office at Silver Creek, N. Y. Said exchange and sale to take place on or before October 5th, 1906. "(Signed) RUFUS M. CHOATE, "GEORGE S. BEEBE." The shares of gas and improvement company stock were delivered over to the defendant simultaneously with the execution of the agreement. The plaintiff has brought this action to recover damages for breach of the agreement on the part of the defendant for failure to transfer to the plaintiff the twenty shares of telephone company stock as stipulated in the agreement. In attempted performance of the contract the defendant did deliver to the agent Fourth Department, March, 1911. [Vol. 143. of the plaintiff a certificate of stock, duly executed and attested, and which contained the following: "INCORPORATED UNDER THE LAWS OF THE STATE OF NEW YORK. Shares 20. "No. 114. "THE HANOVER TELEPHONE Co. "Capital Stock $2,500.00. "This certifies that, Rufus M. Choate, is the owner of Twenty Shares of par value Ten Dollars each of the Capital Stock of The Hanover Telephone Company." The plaintiff's agent gave a receipt for these shares of stock, but later returned the same to the defendant, and it is claimed the certificate does not represent the stock which the defendant agreed to transfer. The plaintiff's counsel, for the purpose of identifying the stock and to support his contention, endeavored to show the amount of the capital stock of the Hanover Telephone Company, its par value and other facts which might have been material on that issue, all of which was excluded and to which exception was taken. I think this evidence was competent. The written agreement was complete in itself, and the plaintiff should not be allowed to vary its terms as no fraud is charged, but the defendant undertook to deliver to the plaintiff twenty shares of the capital stock of the Hanover Telephone Company of the par value of ten dollars each, and the agreement does not state that the shares to be transferred are of that value. The fair meaning of that obligation is that the shares should be of the capital stock as the company was then capitalized. It is the claim of the plaintiff that the shares delivered were not of that kind. He should have been permitted to show that fact, if true. The rights of the parties are fixed by the agreement, and so far as the record shows the sole issue within the pleadings was whether the certificate delivered to the plaintiff was a performance of the agreement by the defendant. The judgment should be reversed. All concurred. Judgment reversed and new trial ordered, with costs to appellant to abide event. Fourth Department, March, 1911. App. Div.] BETHANY METHODIST EPISCOPAL CHURCH, Respondent, v. FRANCIS HENRY BROOKS and Others, if Living (Said Names Being Fictitious, They Being Supposed to Be the Children of HENRY DIXON, Deceased, etc.), and Others, Defendants, Impleaded with JULIUS M. MAYER, as Attorney-General of the State of New York, Appellant. Fourth Department, March 8, 1911. Will destroyed will -- witness - disqualification of attorney to testify as to contents. In an action to establish a will which has been destroyed the attorney who prepared it is disqualified under sections 835 and 836 of the Code of Civil Proced ure from testifying as to its contents, unless the prohibition of the statute be waived in the manner prescribed. APPEAL by Julius M. Mayer, as Attorney-General of the State of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 4th day of January, 1908, upon the verdict of a jury, also from an order entered in said clerk's office on the 19th day of December, 1907, amending and correcting the verdict and minutes of trial, and also from two orders entered on the same day denying the Attorney-General's motion for a nonsuit and his motion for a new trial made upon the minutes. Thomas Burns, for the appellant. A. Raymond Cornwall and Virgil K. Kellogg, for the respondent. SPRING, J.: The action is to establish a will of Henry Dixon, who died February 25, 1898, executed in August, 1897, and alleged to have been destroyed in February, 1898. A will was subsequently executed by the decedent February 10, 1898, which was refused probate by reason of the mental incapacity of the decedent and also because of undue influence practiced upon him. The testimony of the plaintiff's witnesses tends to show that the will in controversy was destroyed on the day following the execution of the will which was refused probate, as already noted. Fourth Department, March, 1911. [Vol. 143. Specific questions were submitted to the jury for determination. The first four of these relate to the execution and contents of the will propounded, and the jury found that it was executed in conformity to the statute (2 R. S. 63, § 40; now Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 21), and also determined what its provisions were, whereby the respondent was made the chief beneficiary of the testator's bounty. The evidence contained in the record, while not very full or satisfactory as to some of the questions submitted, was sufficient to call for the submission to the jury. The will in question was prepared by an attorney named Goodale, long an acquaintance of the testator, and who died before the trial of the action. The subscribing witnesses to the will were the wife and daughter of the attorney, the former of whom was also dead at the time of the trial. The daughter, evidently an intelligent woman, testified in detail to the execution of the will, showing compliance with all the requirements of the statute governing the execution of wills. She knew nothing of its contents. The deposition of Mr. Goodale had been taken before a referee and was read at the trial under the objection of the defendant's counsel that the relation of attorney and client existed and that the communication was privileged and within the prohibition of section 835 of the Code of Civil Procedure. Mr. Goodale testified before the referee to the instructions given him by the testator to the contents of the will in detail and also as to its execution. The Court of Appeals in Matter of Cunnion (201 N. Y. 123, affirming 135 App. Div. 864), has held that the attorney who prepared the will in that case was disqualified by sections 835 and 836 of the Code of Civil Procedure from testifying to the contents of the will, and that decision is decisive of this case, requiring a reversal of the judgment. The judgment should be reversed. All concurred. Judgment and orders reversed and new trial ordered, with costs to appellant to abide event. |