Currie v. . White

*829 Batallo, J. By a stock contract such as this, the seller of shares deliverable at a future time assumes to have them, and to make a present sale of them, and to hold them for the benefit of the purchaser until delivery. The language of the contract imports a sale in resentí, and charges the purchaser with interest on the purchase-money, from the time of the sale to the time of delivery. If the seller, for speculative purposes, takes the chances of acquiring the shares in time for delivery, or if, having the shares at the time of sale, he deals with them till the time for delivery, he acts at his own risk. The purchaser cannot know whether the seller has the shares or not, nor do his rights depend upon that fact. They are the same as if the seller had the shares on hand, which he pretends to sell, and made a present sale of them, postponing simply the actual delivery, and keeping them on hand in the mean time. On this theory the purchaser pays interest on the purchase-money. He is, therefore, entitled to dividends accruing between the sale and the delivery. The plaintiff’s right to these dividends seems to have been conceded by the defendant, at the interview of the 19th December. By the notice of December 18th, the defendant exercised his option as to the time of delivery, and appointed the 19th for that purpose. The time for delivery then became fixed, and the rights of the parties were the same as if the 19th of December had been appointed by the original contract for the delivery of the stock. On that day the plaintiff offered to the defendant, in writing, to take and pay for the 1,000 shares of original stock, and demanded the dividends thereon. The defendant’s conduct in taking away this written offer and the stock, and not returning any answer to the offer, was equivalent to a refusal to perform. His previous statement, that he would deliver the stock and allow the dividends, was nullified by his subsequent conduct, in going away without offering the stock, and not returning any answer to the written proposition. The plaintiff’s offer, on the 19th, to take and pay for the original 1,000 shares, was absolute, and entirely separate from *830 his further demand for the 1,000 shares of additional stock. He did not make the delivery of the latter shares a condition of accepting and paying for the original shares. He evidently designed to perform as to the original shares, and still reserve his claim for the additional stock, but to beep the two subjects distinct and separate. It may be that he could not have accomplished this purpose, and that if he had accepted the ¿original shares, with their dividends, he would have been barred from any further claim under the contract. He took his chances on that question, but made no reservation or condition which impaired the validity of his offer to perform as to the 1,000 original shares. A tender of the money was not necessary; the payment and delivery were to be simultaneous. The offer and readiness to pay were sufficient, and by failing to respond to that offer the defendant dispensed with the necessity of a formal tender. The plaintiff showed that he was ready to pay, having made an arrangement with his bank to certify his cheek for the required amount on that day, and having prepared the check at the time of making the offer, for the precise amount of the statement furnished by defendant. If the defendant had said that he would deliver the stock on payment of the money, then it would have been necessary to tender it; but instead of that, he said he would go and consult his lawyer, and he went away, taking the stock with him, and'did not return or send any answer. This constituted a refusal to perform. I think the plaintiff was entitled to judgment for the difference between the contract price and interest and the market value of the 1,000 shares of stock on the 19th of December, with the two dividends thereon. As to the claim for the additional stock, I concur in the conclusions of my learned brother Folger. I think the judgment should be reversed and a new trial ordered, unless the defendant shall consent to a judgment for' the proper amount to cover the claim for the non-delivery of the original 1,000 shares and cash dividends.