Howard v. Brigham

Wells, J. The agreement of November 2, 1863, clearly imposed no obligation upon the plaintiff which would make him responsible for the neglect of Coffin to make sales of the stock at the proper time. Such sales were to be subject to the approval of the defendant as well as of the plaintiff, and the plaintiff had no more right to require sales to be made at any time than had the defendant. The transfers and receipts of November 9,1863, do not appear to have been made upon any new arrangement, as is contended by the defendant. They merely carry out the agreement already made. By the express terms of the receipts the stock is “ to be disposed of in accordance with the foregoing agreement; ” and we infer that the receipts were written upon the same paper with the agreement itself. Subject to the debt for which the shares were pledged the defendant retained his control of the stock, except so far as he and the plaintiff had both alike subjected their fights to the terms of the mutual agreement of November 2. We think there is no ground for the argument that the transfers of November 9, by joining the record title in the stock to the previous pledge of the proceeds thereof, constituted, by operation of law, an accord and satisfaction, or payment of the debt pro tanto. And the jury have found as matter of fact that the stock was transferred and accepted as collateral security. The foregoing statement of the case seems to make it suifi ciently apparent that the plaintiff cannot be held responsible for any loss occasioned by neglect to sell the stock. Even if [137] the transfer deprived the defendant of all control of the shares, and conferred it exclusively upon the plaintiff, yet by the terms of his receipts the plaintiff’s right of control was made subject to the provisions of the agreement of November 2. The plaintiff was not authorized to make sales; for, by the agreement, in which both plaintiff and defendant had joined, that authority had been exclusively conferred upon Coffin; and only the right of approving or disapproving was reserved to themselves. The defendant himself had thus deprived the plaintiff of any right to dispose of the securities; and he cannot now throw upon him the consequences of a failure to sell them. It does not appear that the plaintiff ever withheld his approval of any proposed sale, nor 4&at the defendant ever requested that sales should be made. Exceptions overruled.