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Wilhelm v. Wood

Supreme Court of New York, Appellate Division

May 29, 1912

RICHARD B. WILHELM, Respondent,
v.
ROBERT C. WOOD and J. CRAIG HAVEMEYER, Doing Business under the Firm Name of WOOD & HAVEMEYER, Appellants.

APPEAL by the defendants, Robert C. Wood and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk's office on the 5th day of June, 1911, denying the defendants' motion for a new trial made upon the minutes.

COUNSEL

Charles F. Brown [John R. Halsey and Edward M. Stothers with him on the brief], for the appellants.

Frederick J. Moses [A. P. Bachman with him on the brief], for the respondent.

WOODWARD, J.:

On the 6th day of July, 1900, H. Allen Odell, representing the defendants, wrote to Tully R. Cornick at Knoxville, Tenn., as follows:

Page 43

'DEAR SIR.--We make you the following proposition: That we will accept the lease of the Lexington Gas Company, recently obtained by you from said company, and perform the terms and conditions of said lease.

'That we will pay to you and your associates One Thousand Dollars ($1000) a year for five years, commencing at the beginning of the lease. We will further pay you and your associates the sum of Ten thousand Dollars ($10,000) in consideration of the transfer of said lease and for services in connection therewith, said transfer to be to our nominee.

'The only proviso which we make in this proposition is that the legalities of the deal, such as the right of leasing the property, the validity of the franchises and all other matters of that sort which arise in this transaction shall be favorably passed upon by our attorney, Mr. John J. C. Tomlinson of New York.

'That we will complete the deal on or before the 21st day of July, 1900, at Lexington, Kentucky.

'Please forward your acceptance of this proposition at once and oblige.'

On the 9th day of July, 1900, Mr. Cornick, through whom the plaintiff claims in this action by reason of certain assignments of the contract, wrote to the defendants, saying: 'I have received a letter dated July 6th, 1900, signed 'H. Allen Odell,' representing Wood & Havemeyer, a copy of which is hereto attached, and beg to advise you that the proposition contained therein is accepted. I shall be glad to place your attorney Mr. Jno. J. C. Tomlinson in communication with the attorneys at Lexington, who are fully cognizant of the Charter, franchises and other details with which your counsel will wish to become familiar.'

It is not disputed that Mr. Tomlinson has never passed favorably upon the legal questions involved in support of the lease. On the contrary, it is shown by the evidence that he had rejected the lease as not conforming to the requirements of the law, and it is admitted that, acting in good faith, this would be sufficient to defeat the plaintiff's cause of action. The contention is, however, that the defendants fraudulently conspired with Mr. Tomlinson to prevent a favorable report upon the lease, and

Page 44

that the transaction fell through by reason of this fact, and the jury has found in favor of the plaintiff upon this proposition. The question here presented is whether the evidence ...


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