| Mass. | Mar 15, 1869
If the contract between these parties is to be taken simply and literally as an undertaking on One side to sell, and on the other to buy, certain shares in a corporation, at a price and within a limit as to time previously agreed upon, some of the objections relied upon by the defendant would be of great force and weight. To claim the benefit of an executory contract of that kind, and to be entitled to claim damáges for a violation of it, the party intending to sell must allege and prove that, at the time appointed, he was ready and able to fulfil the contract on his part, and that he made a distinct tender of performance and literally offered to make the conveyance, but that the party who had agreed to buy refused to receive the stock or to fulfil his part of the agreement. The stipulations would be mutual and dependent, and neither party could complain of the other without an explicit and full tender of performance on his own part.
But we think that this is not the true interpretation of the contract. The form of the transaction is, that the plaintiff buys the shares of the defendant and then makes a contract that he will sell them to the defendant on certain terms and at a certain time. The terms of the written contract, however, plainly show that in buying the stock the plaintiff reserved to himself for the term of an entire year the right to repent of his bargain and reclaim his money. During the whole of that period it was exclusively at his option whether he should hold the stock as a purchaser, or whether the transaction should be a loan of one thousand dollars. No note was taken ; and none was necessary in order to make the transaction, in substance and effect, a loan. The defendant’s agreement is, in a certain contingency to purchase back the shares; he is to refund the consideration, with interest, and the shares are to be reassigned to him; that is to say, his contract is, to cancel the sale and return the money, with interest, if the plaintiff shall, in writing, in one year, require of him that he do so. In substance, the transaction would differ very little from a mere loan of the money, upon the stock as collateral security, provided the plaintiff chose that such should be its character. It depended upon the plaintiff’s election, to be
There can be no doubt that the written notice actually given expressed with perfect distinctness the fact that the plaintiff had made his election, and had decided not to keep the shares. The giving back of the shares and the repayment of the money were to be simultaneous operations. The plaintiff was not bound literally to convey the stock and put it out of his reach before he received the money. The defendant objects that this notice was given before the year expired, and the case finds that it was served about eighteen days before the expiration of that time. By the terms of the contract, nothing could be said to be due from the defendant until the end of the entire year, but there is nothing on the face of the contract to show that the plaintiff had not full liberty to decide at any time within the year upon the alternative which the defendant’s written obligation allowed him. If the sale were defeasible, at his option, during the year, it is no wrong to the defendant, and puts him to no inconvenience, that the plaintiff should have made his final election a few days or a few weeks before the year expired. The evidence reported tends to show that he had made several unavailing attempts to find the defendant at his usual place of business^ and that the defendant had gone out of the state. We cannot revise the finding of the judge who tried the case, as to the facts; and he may have found, on the evidence reported, that the defendant purposely avoided a tender from the plaintiff of a re-conveyance. However that may be, the judge may well have found that such a written notice, left at the defendant’s house a few days before the year expired, was, under the circumstancea of the case, a continuing notice or offer ; that the plaintiff then had, and continued until the moment of trial to have the shares
Exceptions overruled.