Opinion
December 3, 1951.
In an action to recover damages for breach of an agreement whereby appellant agreed to sell and respondent agreed to purchase all of the issued and outstanding capital stock of a domestic corporation, judgment has been entered, after trial, dismissing the complaint. Judgment reversed upon the law and the facts, with costs, and judgment granted in favor of plaintiff against defendant in the sum of $3,736.46, with interest from April 5, 1950, with costs. In our opinion the proof establishes that there was a valid and binding oral agreement entered into by the parties upon which their minds met in all respects; and failure to deliver a signed copy of the writing setting forth the terms of that agreement cannot defeat its enforcement. ( Pratt v. Hudson Riv. R.R. Co., 21 N.Y. 305, 308; Sherry v. Proal, 131 App. Div. 774, 776.) The signing by respondent of a copy of the writing setting forth the terms of the agreement constituted a memorandum sufficient to satisfy the Statute of Frauds. (2 Williston on Contracts [Rev. ed.], § 579A; Restatement, Contracts, § 216; Argus Co. v. Mayor of Albany, 55 N.Y. 495.) Appellant proved damages in the above-stated amount within subdivision 2 of section 145 Pers. Prop. of the Personal Property Law ( Agar v. Orda, 264 N.Y. 248) and is entitled to interest thereon from the time of respondent's refusal to perform. (Civ. Prac. Act, § 480; Steinbugler v. Atwater Co., No. 1., 264 App. Div. 864, affd. 289 N.Y. 816.) Findings of fact inconsistent herewith are reversed and new findings will be made. Carswell, Adel, Sneed and Wenzel, JJ., concur; Nolan, P.J., dissents and votes to affirm. Settle order on notice.