Concurring in what has been said by the presiding justice as to the right of the Appellate Term to modify the judgment of the City Court by reducing the amount thereof to $2,000, and *856as to the judgment in the Supreme Court, Kings county, not constituting a bar to this action, I am compelled to dissent from the conclusions reached therein as to the contract between plaintiffs and defendant not being enforcible and as to the Statute of Limitations constituting a bar to this action. The court has found the following finding of fact: “First. That on the 16th day of September, 1903, the plaintiffs and defendant entered into an agreement whereby the defendant, in consideration of the plaintiffs assigning and transferring to the defendant forty-five shares of the common stock of the corporation known as Dentists Supply Company of New York, that he, the defendant (inter alia) would at any time thereafter, at the option and upon the request of the plaintiffs, cause the said Dentists Supply Company of New York, to sell and deliver to the plaintiffs from time to time, as they required them,-10,000 sets of artificial teeth at the rate of forty-five cents for each and every set of teeth or such part or parts of the said 10,000 sets as the plaintiffs, at their option, might request, to be sold and delivered by the said Dentists Supply Company of New York to them.” This finding is supported by the testimony of one of the plaintiffs, Mary A. Seeley, to the effect that defendant opened negotiations for the purchase of plaintiffs’ stock in the Dental Supply Company, and at first offered them therefor (1) $17,500 in cash, or (2) $15,500 in cash and the privilege of taking 10,000 sets of Twentieth Century teeth manufactured by the Dental Supply Company at the price of forty-five' cents a set. The first interview resulted in no agreement. She says, however, that the matter “was consummated on the 16th of September, 1903,” when defendant called upon plaintiffs and said he could not pay $15,500 in cash, but offered them instead his stock in the Butterick Painless Dental Company to the extent of 1,190 shares, which-he represented to he of the value of $15,500, together with the privilege of taking 10,000 sets of teeth at the price of forty-five cents a set. This proposition was accepted by plaintiffs on the date heretofore mentioned, and “'the matter was finally consummated.” The defendant then assured the plaintiffs that he was in a position to confer the privilege of getting the 10,000 sets of teeth at forty-five cents a set, which was below the then market price thereof, because the purchase *857of the plaintiffs’ stock would give him the control of the company which was making the teeth; he was already an officer thereof, and was related by blood or marriage to the other officers. Upon the trial of this action the defendant’s testimony given on the trial of the Kings county action was read in evidence. Therein the defendant swore that he had asked the plaintiffs for two options: (1) To buy their stock at §17,500, or (2) “to turn over to them the Butterick Painless Dental Company’s stock free and clear, all bills paid, in place of their stock, and to see that Dr. Seeley could from time to time purchase to the extent of 10,000 sets of teeth at forty-five cents a set, which was much below the market price.” The date of this interview he gives as September fifteenth, and he says that on September sixteenth Dr. Seeley accepted the later proposition “to take the Butterick Painless Dental Company’s stock, and to get from time to time-what teeth he wanted until he had 10,000 sets at forty-five cents a set.” He also testified that Dr. Seeley “drew two receipts at the hotel which were signed, one by himself and wife, and one by me.” These are the papers set forth in the opinion by the presiding justice.
The defendant gave no testimony upon this trial, and has not sought to contradict, limit or vary his prior statement of the purport of the contract. Therefore, both the plaintiffs and defendant stand upon and acknowledge the same oral contract, made on September 16, 1903, namely, that plaintiffs should transfer their stock in the Dental Supply Company in exchange for the defendant’s stock in the Butterick Painless Dental Company and in consideration (in addition thereto) of the privilege given them to buy the quantity of teeth referred to at the price fixed. There is no dispute as to what the terms of the contract were, as the plaintiffs’ version thereof is, in effect, corroborated and admitted by the defendant. Hence, the receipt, so far from being any evidence of a contract between them, is not even a memorandum of their agreement but solely a receipt for the stock transferred in part performance of the contract, and no more. It is thus characterized by defendant himself in his testimony invariably and repeatedly. The'words “ free and clear ” used therein became pertinent in view of the defendant’s own theory of what the *858agreement was, and there is nothing in the receipt for the stock as exchanged which either modifies the original agreement or enlarges the paper from a receipt to a contract. I am, therefore, of the opinion that the written paper being solely a receipt given upon part performance of the contract and not a memorandum of the contract itself, had no bearing whatever upon the existence of the oral contract concededly made between the parties, and as to which both sides are in substantial accord.
Upon the bar of the Statute of Limitations to the cause of action, it may be said that there was no time fixed within which the plaintiffs should exercise their privilege, and, therefore, it should have been exercised, as a matter of law, within a reasonable time. The court below has found: “ Seventh. That the exercise by the plaintiffs of their said option and the demands made by them as aforesaid, were made by the plaintiffs within a reasonable time from the making of the said agreement.” There is no testimony whatever in the case which justifies any other finding save that made by the trial court. The plaintiffs did exercise the privilege which the defendant admits he gave them by calling for sets of teeth as they required them between September 16, 1903, and May 11, 1909, until 2,170 sets had been delivered at the agreed price of forty-five cents for each set. When they demanded, the balance of the sets and tendered the cash therefor, the refusal was not based upon the ground that they had unreasonably delayed in exercising the privilege, but only on the ground that the price of teeth had gone up and that, therefore, the makers could not afford to deliver the teeth at the price fixed by the option. In the absence of any proof that the plaintiffs had unreasonably delayed in exercising their optionor that the price of the teeth had appreciably increased in the interval, I think that the statute did not commence to run until the date of the final demand arid tender, namely, April 23, 1912. For these reasons I believe the judgment should be affirmed, with costs.
Clarke, J., concurred.
Determination and judgment reversed and judgment ordered for defendant, with costs in all courts. Order to be settled on notice.