| Cal. | May 8, 1883
The plaintiff sold to the defendant certain shares of the capital stock of the Erie Consolidated Mining Company, upon defendant’s agreement to pay for the stock, at a stated rate per share, “from the first moneys which can be realized from the sale of any stock of said company owned or controlled by him (Chapman) • . . . . and said Chapman agrees to use all reasonable efforts to realize on the stock of said company owned or controlled by him without unnecessary delay, to the end that said payment may be made to said Congdon.”
By this agreement the parties clearly expressed their intention that the stock should be paid for out of the first moneys that could be realized from the sale of any stock of the company owned or controlled by Chapman, the latter further agreeing to use all reasonable efforts to realize on the stock without unnecessary delay, “ to the end that said payment may be made to said Congdon.”
At the trial the court below found that the defendant used reasonable diligence and made all reasonable efforts to sell the stock, but had been unable to sell any of it. Under such circumstances, to hold the- defendant liable in this form of action would be to make and enforce between the parties a contract essentially different from the contract that they themselves made, and from that declared on herein.
Judgment affirmed.