Drake v. Reiner ( 1931 )

Sears, P. J., and Crosby, J.

(dissenting). We find in the record no trace of an agreement on the part of defendant to pay to plaintiff the amount for which judgment has been granted. Neither can the recovery be sustained on the basis of an obligation to pay over money had and received because no money of plaintiff’s was ever had or received by defendant. There was not a gift to plaintiff by defendant which the plaintiff voluntarily devoted to a payment upon the purchase price of the stock. There was simply a credit made voluntarily and gratuitously by defendant on account of the purchase price. To call this credit an executed gift and grant plaintiff a right to recover the amount of the credit from defendant is to overlook the realities of the transaction.

We do not mean by this statement to be understood as passing upon the question whether plaintiff may recover damages for a breach of his contract to hold the stock for plaintiff or for the conversion of the stock. No basis for damages in such respects appears in the record.

Judgment and order affirmed, with costs.