27 Vt. 420 | Vt. | 1855
The opinion of the court was delivered by
The questions in this case arise on exceptions, and also on a petition for a new trial. The bond in suit was given on the 21st day of August, 1848, conditioned for the, payment of fifteen hundred dollars on the 21st day of August, 1851, for which payment, the plaintiff was then to deliver to the defendant twenty shares of the stock of the Vermont and Massachusetts Railroad Company.
To sustain this action, the plaintiff must have performed the conditions of the bond on his part; for the delivery of the stock, and the payment of the money are concurrent acts, and neither can sustain an action without showing a performance, or a readiness to perform on his part, or an excuse for non-performance. It is insisted, that this action cannot be sustained, as the plaintiff has not transferred the stock for which the bond was given. It appears in the case, that on the 6th of February, 1850, the plaintiff held the certificate, and was the owner of twenty shares of the stock mentioned in the bond, and that by the terms of the certificate, they were transferable on the books of the corporation, subject to the provisions of the charter, and the by-laws of the corporation. It also appears, that on the 21st of August, 1851, the plaintiff transferred to the defendant that certificate of stock, with power to perfect a full transfer of the stock to himself, on the books of the corporation. We are satisfied, that the tender of that certificate, with that assignment, was, in that particular, a sufficient performance of the contract on his part. The Vermont and Massachusetts Railroad Company was incorporated by an act of the legislature of Massachusetts. The validity of the transfer of its stock is>
It is contended, however, that the plaintiff cannot recover, as he did not transfer or tender to the defendant, the identical stock which was transferred to th 3 plaintiff on the 21st of April, 1848. On that subject it is sufficient to remark, that it does not appear from any fact stated in the case, that the plaintiff was to keep and re-transfer the same stock at the expiration of three years, and certainly no such provision is contained in the bond. We cannot regard the contract, therefore, as containing, any such provision. In the case of Frost v. Clarkson, 7 Cowen 24, it was held, that a contract for the sale of shares in an incorporated company at the end of sixty days, was not rescinded or rendered inoperative by a gale of a portion of the stock which he then had, intermediate the contract and time of sale. The court observed, “ that though the “ parties might buy and sell a thousand shares of the same stock, “ and though they might not have had a single share one day after "the contract was made, it does not follow that they could " not have fulfilled their contract at any time on demand.” The same point was decided in the case of Shales v. Seignoret, 1 Ld. Raymond 440. The certificate of stock in this case stands ©n the same footing, and is of equal value, with that sold by the defendant to the plaintiff in 1848. There is no reason, therefore, in treating that contract as having been rescinded or rendered inoperative by a sale of that stock.
A11 objection is also made to the plaintiff’s recovering in consequence of the subsequent issue of various shares of stock at a less
It is also insisted, that this bond is void; that no recovery can be had upon it, on the ground that the contract for which it was given is illegal as being a stock jobbing contract, and that all contracts for the sale of stock on time are, in effect, wagers on what will be the value of the stock at the time it is to be transferred. This objection is taken on the' authority of Collamer v. Day, 2 Vt. 144, in which it was held, that all contracts in the nature of wagers
In the case of Bryan v. Lewis, Ry. & Moody, 386, it was held by Lord Cn. J. Abbott, “ that if a man sell goods to be delivered “ at a future day, and neither has the goods at the time, nor has “ entered into any prior contract to buy them, but means to go into “ the market and buy the goods which he has contracted to deliver, “ he cannot maintain an action for damages for non-performance “ of the contract.” The same doctrine had previously been ruled by the same judge, in the case of Lorymer v. Smith, 1 B. & Cres. 1. In relation to those cases, however, it is sufficient to observe that, that doctrine has never been subsequently recognized in the English courts; but, on the contrary, those cases have been directly overruled in the exchequer, by the cases of Hibblewhite v. McMorin, 5 M, & Wels. 462, and Mortimer v. Mc Cullen, 6 M. & Wels. 75. We think, therefore, that the plaintiff is entitled to recover on this bond, the price stipulated to be paid for the stock which was transferred to the defendant, on the 21st of August, 1851.
The exceptions are overruled, and the judgment of the county court is affirmed.
In relation to the petition for a new trial, we think, it must be dismissed. As a general rule, to sustain such an application, it must appear, not only that injustice has been done, on the trial of the case, but that there has been no want of diligence on the part of the petitioner; and in no case, will the court exercise that power, unless there is a reasonable certainty that the subject matter, on
The union of the Vermont and Massachusetts Railroad Company with the Brattleboro and Fitchburg Railroad Company was effected on the 4th of June, 1851, after these bonds had been given, and before the stock was to he delivered. It is unnecessary, in the disposition of this question, to inquire what effect the union has had upon the value of the stock of these different companies, or whether the franchises and property of the latter have become the property of the former company. It will be perceived that, by the charter of the Vermont and Massachusetts Railroad Company, a union of that kind was contemplated and allowed. A specific provision for that purpose was granted to that corporation, in their charter. In forming that union, that corporation was only exercising its corporate powers, subject to which, the stock was taken by the original subscribers. When the defendant gave his bond to purchase and receive twenty shares of the Vermont and Massachusetts railroad stock, and bound the plaintiff by his bond to transfer it to him, he assumed the obligation of the purchase, subject to the exercise of that right by the company, — for it was the exercise of a corporate power, which they had at the time, and previous to the execution of this bond. Those who were stockholders in that company before the union, remain stockholders in the company since they have become united. The company axe acting under the same charter, they axe in the enjoyment of the same franchises, and are only exercising an extended power, subject to which the whole stock of the company is held.
The petition must be dismissed, with costs.