The opinion of the court was delivered by
The relation of these parties is to be ascertained from the writing given in evidence as the ground of the action. That, we are satisfied, is a mere offer or proposal, and not, by itself, a contract. The plaintiff below could not therefore rely on it, as a contract, without showing that defendant was duly notified or informed of his acceptance of it: Pitman on Prin. and Surety, 28, &c. The court below was in error in giving the instrument an interpretation as an absolute contract.
And suppose the plaintiff did give the defendant notice; then another objection is presented to his recovery. The defendant reserves to himself the liberty of taking the stock at cost, and plaintiff sold it without first offering him an opportunity of doing so. If this reservation is in fact worth nothing to the defendant, it is not worth our while to enforce it. If it had related to a horse or other thing having peculiar qualities of its own in its kind, it is easy to see that such a reservation might have real value in it. But shares of stock in the same company differ in nothing from each other.
What then is the value of this reservation to the defendant ? If the stock had been above par when the plaintiff sold it, the right of action would have been on the other side to recover tbe
Judgment reversed and a new trial awarded.