Judgment modified so as to award plaintiff seventeen dollars and fifty-seven cents damages, and as thus modified affirmed, without costs, upon the opinion of H. T. Kellogg, J., at Trial Term.
All concurred, except Kellogg, J., dissenting in an opinion, in which Chester, J., concurred.
The following is the opinion of the court below:
Henry T. Kellogg, J.:In order to induce the plaintiff to purchase treasury stock of the Idaho-Maryland Development Company at the price of $2,500, the defendant, an officer of said company, agreed to take a note of the plaintiff therefor for four months and individually promised to renew the same every four months thereafter until the dividends upon said stock should pay the said sum. It is evident from the written contract itself that the plaintiff was to pay all interest charges upon said note, for the renewals were to" continue, not until the note and the interest was fully paid by dividends, but until the sum of $2,500,- which was the principal sum of the note, had through such dividends been fully paid. That the plaintiff was to pay all interest charges upon said note and its renewals is proven beyond controversy by the conduct of the plaintiff, who at the time of the giving of the original note and the many renówals thereof prepaid the interest charges without objection or protest, thus giving to the agreement a practical interpretation *558which cannot now be departed from. The original note and its renewals were payable to the order of the defendant. They were discounted by him at a banking house. After many renewals the discounting bank at last refused to renew again, sued the note then possessed by it, and the plaintiff was compelled to pay the same. It is evident that the parties to this action made a valid agreement based upon consideration and that the defendant has broken that agreement. It is not clear, however, that the plaintiff has sustained any damage. He has retained in his hands the stock sold him through the defendant, and will retain the same, although he obtains judgment in this action, for that stock never belonged to the defendant and, therefore, a judgment in favor of the plaintiff will not of itself transfer title in the same. It does not appear that the stock in question is without value. For all that appears that stock may be worth much more than the sum of $2,500. For this reason, therefore, it is impossible to determine whether the plaintiff has been injured at all by the defendant’s breach or how great, if any, that injury is. Again, as determined, it was agreed between the parties that the plaintiff should pay interest upon the note and all its renewals. If no dividends were ever paid by the company,.then under the agreement the plaintiff would be obliged to pay in quarterly installments perpetually the interest charges on the principal sum thereby promised. The damage of the plaintiff is plainly the remainder after deducting from the sum of $2,500 the present value of a discharge from an obligation to pay in perpetuity the annual interest of six per cent on such sum. What is it worth to be relieved of the payment of the interest on that sum of money for an infinite number of years ? Evidently the sum of $2,500.
For all these reasons judgment shall follow for the plaintiff for nominal damages only.