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Stott v. Greengos

Decided: April 20, 1967.

MICHAEL STOTT, PLAINTIFF-RESPONDENT,
v.
ARTHUR GREENGOS, DEFENDANT-APPELLANT



Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

In this suit plaintiff Michael Stott seeks to recover the difference between the price paid by his assignor, Eastman Dillon, Union Securities & Co. (herein Eastman Dillon), for the purchase of 100 shares of Syntex Corporation*fn1 and the price at which the shares were sold. The cause was tried in the Law Division without a jury. Plaintiff was awarded a judgment of $5,451.71 plus interest and costs, and defendant Arthur Greengos appeals.

The record reveals that Donald J. Unger, an employee of Eastman Dillon, testified for plaintiff. He stated that on Thursday, January 23, 1964, he received a telephonic "limit order" from Greengos for the purchase of 100 shares of Syntex at not more than $167 per share; they were actually purchased the same day at a price of $164 3/8 per share; he called defendant that afternoon to confirm the transaction, and defendant

had requested him to sell if the stock reached a point $5 above the purchase price. Defendant's testimony was that he limited his order to a price of $164 1/4 per share; he instructed Unger to sell if the stock went either up or down four or five points, and he never received a telephonic confirmation of purchase which he had specifically told Unger he required. We note that that alleged requirement was not pleaded.

Defendant further testified that on Saturday, January 25 he received a written confirmation of the purchase at $164 3/8. Monday, January 27, he spoke with Unger and a Paul Ford, the Eastman Dillon office manager, and disclaimed any interest in the stock because it was purchased at a price 1/8 point above the limit of his order. Subsequently, upon receiving a letter and a telegram demanding payment by noon January 31, he responded with a letter denying any interest in the stock due to the error in the purchase price. The shares were sold January 31 at the market price which had declined more than $50 per share.

Defendant urges three grounds for reversal: (1) there was no competent proof as to damages because neither the purchase nor the sale confirmation slips should have been admitted into evidence; (2) the court abused its discretion when it refused to grant an adjournment to the following day in order to allow defendant to produce a witness who failed to appear, and (3) the court committed error in refusing to consider the defense of statute of frauds under N.J.S. 12A:8-319(c) of the Uniform Commercial Code.

Unger testified as to the practice of confirmation of purchase and sale, and that he knew, of his own knowledge, that the stock was sold as indicated in the confirmation of sale. The court allowed the documents in evidence as business entries. That ruling comports with the statutory requirements set forth in N.J.S. 2A:82-35 and the judicial interpretations thereof. See Mahoney v. Minsky, 39 N.J. 208 (1963); Hackensack Hospital v. Tiajoloff, 85 N.J. Super. 417 (App. Div. 1964); Fagan v. City of Newark, 78 N.J. Super. 294

(App. Div. 1963); Webber v. McCormick, 63 N.J. Super. 409 (App. Div. 1960). Note, Rule 63(13) of the Proposed Rules of Evidence. The fact that the confirmations may be styled self-serving does not affect their admissibility. Mahoney v. Minsky, supra, 39 N.J., at p. 219.

The granting of an adjournment is discretionary with the trial court; an appellate tribunal may reverse a denial thereof only if the judicial action was "clearly unreasonable in the light of the accompanying and surrounding circumstances" and "resulted prejudicially to the rights of the party complaining." Smith v. Smith, 17 N.J. Super. 128, 129, 133 (App. Div. 1951), certification denied 9 N.J. 178 (1952); Fotopak Corp. v. Merlin, Inc., 34 N.J. Super. 343, 347 (App. Div. 1955). Here it does not appear that the testimony sought to be produced would have had any substantial effect on the resolution of the essential issues. Accordingly, the determination of the trial judge was not at odds with the doing of substantial justice and did not prejudice defendant's rights. See R.R. 1:5-3(b); 2:5.

Article Eight of the Uniform Commercial Code, N.J.S. 12A:8-319, provides:

"A contract for the sale of securities is not enforceable by way of ...


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