Litchfield Savings Society v. Dibble

67 A. 476 | Conn. | 1907

Ferris, under the terms of the certificates which he signed, was not bound to pay anything unless he either received or was tendered something. Bean v. Atwater, 4 Conn. 3, 13. The language of each required him to pay $700, not at all events, but only if the holder of the certificate should deliver or offer to deliver to him a certain bond and $500 par value of the capital stock of a certain company. On October 16th, 1902, when the plaintiff made the loan to White Company, and from that day to October 16th, 1903, Ferris was entitled at any time to tender that sum to the plaintiff, at the Importers Traders National Bank, and demand the stipulated bond and shares of stock. The stock could only have been "delivered" by the delivery to him of a certificate for fifty shares. Whether it would have been necessary to tender such a certificate made out in his own name, or whether one made out in the name of another with a proper power of attorney for its transfer to him would have sufficed, it is unnecessary to inquire. The plaintiff was not prepared to deliver one of either description on October 16th, 1903, the date of the alleged default on the part of Ferris.

It is averred that before that day the plaintiff endeavored to exchange its certificate for 1,500 shares for thirty certificates each for fifty shares, and could not obtain them. It is not averred how long before that day this endeavor was made. For aught that appears, such an exchange could have been effected if applied for promptly after the plaintiff accepted the collateral security, which was upon October 16th, 1902.

If, therefore, impossibility of performance could constitute in such a case an equitable excuse (as to which we intimate no opinion), no such impossibility is alleged.

The worthlessness of the stock is immaterial. Ferris could not have declined to accept it on that ground, had the plaintiff tendered it to him. The parties agreed on the delivery of that particular security and, whether it were valuable or valueless, each was entitled to insist on the performance of the contract in that respect, according to its expressed terms.

The plaintiff did not help its case by the tender to Ferris, in November, 1903, of three assignments by White Company, each of fifty of the shares represented by the certificate for 1,500 shares in their names, with powers of attorney for their transfer, and the accompanying offer to surrender the latter certificate to the secretary of the company or to any one whom both parties might agree on to hold in trust for the protection of their respective interests. Even had this tender been made on October 16th, 1903, Ferris, as already stated, was entitled to stock certificates for fifty shares each. The assignments were at most only a means of thereafter obtaining such certificates. Nor could the plaintiff impose a new contract upon him by a demand for the interposition of a trustee. Equity sometimes reforms contracts, but it cannot, without a reformation, treat them as something substantially different from what they are. Ferris for $700 was to get a bond and, if not the legal title, then at least the means of promptly getting the legal title to fifty shares of stock. He could not be compelled to accept in lieu of this, an equitable right to demand fifty shares through action to be taken by a trustee.

There is no error.

In this opinion the other judges concurred.