Duchemin v. Kendall

Morton, C. J. By the contract sued on, the defendant agrees to secure to the plaintiff a bona fide bid of five thousand dollars for five hundred shares of the Addax Basting Machine Company’s stock, within twelve months from date; or, in case of failure to do so, to take from him at his option said five hundred shares of stock for five thousand dollars in one year from date. The contract is dated August 9,1886. At this time the plaintiff was the equitable owner of one thousand shares of the stock. This stock stood in the name of the defendant and James F. Bliss, who held it in trust for the plaintiff, who had an equitable interest in it, which was assignable, and his agreement to assign and transfer five hundred of such shares to the defendant, and the execution of this agreement, as set out in the report, furnished a sufficient consideration for the agreement sued on. The defendant contends that this agreement of the plaintiff is void under § 6 of chapter 78 of the Public Statutes. This statute provides that every contract for the sale of stock shall be void unless the party contracting to sell or transfer the same is, at the time of making the contract, the owner or assignee thereof, or authorized by the owner or assignee, or his agent, to sell or transfer the same. If we construe the report most favorably to the defendant, the facts appear to be as follows. The plaintiff was the equitable owner of one thousand shares of the stock, which stood in the name of Bayley, who was a naked trustee. Bayley, with the consent of the plaintiff, had, by an instrument dated February 27,1886, a copy of which is annexed to the report, assigned or agreed to assign the said stock to the defendant and Bliss, as trustees, with power to sell it and account to the owner for the proceeds, or if not sold within a year to return it to the owner, his representatives or assigns. The agreement of the plaintiff operated as an agreement to sell five hundred shares of the stock subject to this power. When executed, it transferred to the defendant all the interest which the plaintiff had in such stock. Such must have been the understanding of both parties. The plaintiff had a right thus to sell his interest. He was the owner of it, and fully authorized to make the sale which he did. The case does not fall within the letter or the spirit of the statute, the purpose of which was to prevent gambling in stocks. [175] The defendant further contends, that the plaintiff cannot recover because he did not make a tender of the shares at the end of the year. The defendant’s promise was that he would procure a bid of five thousand dollars for the stock within twelve months, or, in case of failure so to do, would take from the plaintiff, at his option, the stock for five thousand dollars, one year from the date of the contract. It would be a too strict and harsh construction of the contract to hold that a technical common law tender ad diem was necessary in order to save the rights of the plaintiff. Generally, when a party is to deliver a deed or other transfer upon the payment to him of money, it is enough if he offers and is able to give such deed or transfer, without making a formal tender. Cook v. Doggett, 2 Allen, 439. Thorndike v. Locke, 98 Mass. 340. Carpenter v. Holcomb, 105 Mass. 280. In this case, the plaintiff, on the evening of August 8, 1887, mailed a letter at Newburyport to the defendant at Boston, notifying him, in substance, that the plaintiff expected him to take the stock according to the agreement. It is to be presumed that this by due course of mail reached the defendant on the 9th of August. He was thus notified that the plaintiff availed himself of the option given him by the contract. He made no reply, and on August 13, the plaintiff’s agent called on the defendant, tendered him the stock, and demanded the sum of five thousand dollars. The defendant refused to take the stock and pay the money. The refusal was not put upon the ground that the tender was too late, or that the defendant had suffered any injury by the delay, but seems to have been a general refusal. We do not think that, in the contemplation of the parties, it was an essential element of the contract that the stock should be transferred on the precise day when the year expired, and we are of opinion that the tender by the plaintiff was made within a reasonable time, and was a substantial offer on his part to perform the contract. As the defendant refused absolutely to take the stock, the plaintiff was not obliged to keep it for the defendant, but had the right to treat the contract as broken, and to bring this action for such breach. Judgment for the plaintiff.