On appeal from a judgment of the Atlantic County Circuit Court.
For the appellant Bourgeois & Coulomb.
For the respondent, Merritt Lane and Walter D. Van Riper.
The opinion of the court was delivered by
HEHER, J. The subject-matter of this appeal is a judgment in favor of respondent, entered upon a jury verdict, in an action for breach of contract. The gravamen of the complaint was that respondent purchased certain securities from appellant, in consideration of the latter's promise to "repurchase the said bonds from the plaintiff at any time, and pay therefor at the rate of ninety-nine cents (99c) on the dollar, plus the accrued interest thereon;" and that the appellant breached this alleged undertaking of repurchase.
Respondent relies upon a writing, in form a letter. As a result of negotiations with his representative, and in an effort to establish business relations, appellant, under
date of June 22d, 1926, forwarded to Senator Edge a letter enclosing "a list of twenty-five bonds of $10,000 each, well diversified with a good income, for your temporary investment," and containing the following undertaking, which, respondent insists, constituted a binding obligation:
"The bond market at present is too high for permanent investment, as you will note from the enclosed ad. of the National City Co., but I propose to let you have our bonds and, gradually, as the market is more favorable, replace each $10,000 lot of bonds, or such as you may not favor, with issues which will have a good prospect for appreciation and better yield. In such cases we will accept in payment S.W. Straus & Co. bonds which you purchase from us at par and accrued interest. The other Stock Exchange issues we will accept at market and accrued interest. Should you wish to cash in your Straus bonds at any time we will be glad to take them from you at 99 or $10 per bond less than you paid for them and the accrued interest. My idea is if you will give me the time to gradually supply you with a high grade, conservative list of investment bonds, you will be proud of it and have absolute safety with a good income."
Senator Edge thereafter, in reliance upon this undertaking, so he maintains, made the following purchases of securities, viz.: June 28th, 1926, certain S.W. Straus & Company bonds aggregating the principal sum of $80,000; July 7th, 1926, like bonds in the aggregate principal sum of $70,000; on December 17th, 1926, a bond in the sum of $7,000; on January 5th, 1927, one in the sum of $20,000; and on April 12th, 1927, two bonds in the aggregate sum of $12,500. The demand for the repurchase of these securities, at the rate of ninety-nine and accrued interest, was not made upon appellant until April 27th, 1933.
The repurchase price, at the rate stated in the letter, and the accrued interest, amounted to $196,501.90. On the theory of non-performance of the repurchase promise, respondent asked for the difference between that sum and the market value of the securities on the dates when he requested the defendant company to perform that undertaking. There was
evidence tending to prove that the aggregate market value of the securities at these times was $40,570. The verdict was for ...