Wight v. Wood

By the Court, Ingalls, J. We are unable to agree with the learned justice, in the conclusion to which he arrived, in this action. There certainly was not an absolute sale of one half of the stock in question, to the defendant. In my judgment, the fair and reasonable construction of the agreement is this: The defendant was to receive the certificates, and within a reasonable, time dispose of said stock upon the most- advantageous terms which he could procure, and when that was accomplished, and the proceeds were realized, he was to receive one half thereof, as Ms compensation. The sale or other disposition of said stock by the defendant was a condition precedent to his acquiring any interest in such stock, or the proceeds thereof. The receipt does not state that the defendant was to have one half of the stock, but one half of the proceeds— clearly contemplating a conversion of the stock into money or some other property. The proposition cannot be sustained, upon principle or authority, that the proceeds of the stock means the stock itself. (Dow v. Whetten, 8 Wend. 160.) There is nothing in the case showing that custom or usage has given to the word “proceeds,” as'applied to stocks, a meaning at variance with the ordinary definition of the word. It cannot be inferred that the Sheldons in 475 tended to make a gift to the defendant of one half of said stock. The very language of the receipt conflicts with such an inference. So; it is clear that the defendant was to earn an interest, by contributing his time and skill, and thereby effect a sale of the stock for the mutual benefit of himself and the Sheldons. There was conferred upon the defendant an unlimited discretion in regard to the manner of disposing of the stock, and surely he was allowed more than a reasonable length of time to accomplish the object, as ten years elapsed from the receipt of the certificate and the demand of the stock. If the defendant had sold the stock fairly, at whatever price he could obtain, he would have been entitled to retain one' half of the proceeds of such sale. I am at a loss to understand why the defendant should be allowed to retain one half of said stock. It is stated that he corresponded, more or less, with third parties, and expended some money in traveling with a view to the disposition of the stock; but it does not appear how much money he expended, or how much time he devoted to the enterprise. It does appear that he has received, in dividends, $630. One half of which would, probably, amply compensate the defendant for all that he had expended in the matter. It does not appear that the stock has materially changed, as to value. We are unable to discover upon what principle of law or equity the defendant can reasonably claim to retain any portion of said stock. If it appeared that the Sheldons had prevented or embarassed the sale of said stock, and had not allowed the defendánt ample time to dispose of the same, a very different question would be presented for our consideration. It is suggested that the Sheldons should have exacted a sale before demanding the stock. I cannot agree to this proposition, as it is evident that the stock was placed in the hands of the defendant for that purpose, and he was left in the undisturbed possession thereof, for the period of about ten years, and 476 no further action was necessary, or could reasonably be required of the Sheldons to inform the defendant in regard to his duty. We are therefore of opinion that the defendant acquired no title to the said stock, and that the court erred in awarding to him one half thereof; and for this reason a new trial should be granted, with costs to abide the event of the action.