Brinley v. Nevins

McLaughlin, J.: Action to recover damages for breach of a contract to sell 50,000 shares of stock. The complaint was dismissed at the [745] close of plaintiff’s case, and from a judgment to that effect and an order denying a motion for a new trial plaintiff appeals. The evidence introduced by the plaintiff would have justified the jury in finding the following facts: That on the 17th of September, 1908, the defendant wrote plaintiff: “The option given to you and Hr. Swift jointly, has expired on September 13th. We will therefore extend the option to you individually, namely for fifty thousand shares Central at thirty-eight for thirty days from date hereof. We have certain plans now under way with regard to the market that will undoubtedly help you to quickly place this block of stock, inside of the next few weeks. We would recommend that you remain in Boston, working up the situation as now is the time in our mind, to strike the iron; ” that on October twelfth plaintiff called at defendant’s office, and after discussing another transaction with his authorized agent, one Bakins, referred to the option for the 50,000 shares contained in the letter quoted, and said he wanted to take up the stock and pay for it; that Bakins, in response to plaintiff’s request, said no letter had been written giving plaintiff an option, to which he replied that he would get the letter and return, which he did on October fourteenth; that Bakins, after seeing the letter, said he did not deny the genuineness of its signature; that plaintiff then repeated the statement which he had previously made, that he was ready to take up the stock and pay for it; that after some talk to the effect that defendant would rather stand a lawsuit than deliver the stock and have it dumped upon the market, he finally told plaintiff to go ahead, and assented to plaintiff’s proposition to come within a day or two and make the necessary payment; that the plaintiff then arranged with Daniel Odell & Co., a responsible firm of stockbrokers, to take up the stock and pay for it, either by cash or certified check, as defendant might prefer; that plaintiff, having made this arrangement, telephoned Bakins he would be ready to complete the transaction on October sixteenth, and Bakins appointed ten-thirty as the time when he could call at defendant’s office; that at the time appointed plaintiff appeared and told Bakins he had come to take up the stock and was ready to pay for it; that Bakins refused to deliver the certificates to the plaintiff and made an [746] appointment for two o’clock in the afternoon, at which time defendant himself was to he present; that at that hour plaintiff returned with the witness Swift and stated that he had come to pay for the stock and would give a certified check or cash, as defendant might prefer, and that defendant refused to deliver the stock. The judgment is sought to be sustained on the ground that there was no consideration for the option, for which reason defendant had the right to withdraw it at any time before acceptance. This may be conceded, but the evidence would have justified the jury in finding that there was an acceptance before the defendant attempted to withdraw. On October twelfth defendant advised plaintiff to go ahead and finance the proposition, and in pursuance of such advice the plaintiff did make the necessary arrangements. Under such circumstances proof of the revocation should have been unequivocal and satisfactory before the court could hold as matter of law that the revocation had been established. (Quick v. Wheeler, 78 N. Y. 300; Pettibone v. Moore, 75 Hun, 461.) Such revocation was not given until the afternoon of October sixteenth. Plaintiff testified that in the presence of Swift he stated to the defendant he had “ come to get the 50,000 shares of stock and pay for it,” and defendant said he would not deliver the stock; that Swift said he could have “a certified check or anything else” and defendant “simply refused to deliver the stock.” As to what took place at the interview last referred to plaintiff was corroborated by Swift. The respondent contends that all the plaintiff did was to give notice that he was ready to perform on his part and inasmuch as he did not actually make a legal tender defendant was not bound to deliver the stock. This undoubtedly would be so except for the fact that the defendant absolutely refused to deliver it. Having refused, an actual tender would have been a mere matter of form and the law does not require one to go through an idle ceremony of that kind. The authorities cited by the respondent are not in conflict with this view. In Page v. Shainwald (169 N. Y. 246) plaintiff did not make his demand and tender until after the option had expired. In Kerr v. Purdy (51 N. Y. 629) plaintiff was [747] not able to make good his demand by payment of the necessary sum. In Pomeroy v. Newell, No. 2 (117 App. Div. 800) plaintiff had merely cabled an assent to the offer of option and had never agreed to purchase. In Harle v. Brennig (131 App. Div. 742) plaintiff had never offered to pay until the action was brought. In the case at bar plaintiff was ready, able and willing to make a tender at the time of the acceptance. If these views be correct, then the failure to actually tender is immaterial, for defendant’s repudiation made that unnecessary. This rule is tersely stated in Currie v. White (45 N. Y. 822) by Rapallo, J., who said: “ 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 check for the required amount on that day. * * -x- 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.” (See, also, Stokes v. Mackay, 147 N. Y. 223; Baumann v. Pinckney, 118 id. 604; Shaw v. Republic Life Ins. Co., 69 id. 286.) The judgment and order appealed from, therefore, are reversed and a new trial ordered, with costs to appellant to abide event. Laughlin, Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., dissented.