delivered the opinion of the court.
The defendants, by the contract sued on, agreed to deliver to the plaintiff’s testator, on or before the fifteenth of July, 1867, seven 77-100 shares of stock in the North Missouri Railroad Company. The main ground of controversy in the court below was as to what was required to be done by the defendants to comply with their engagement, the plaintiff maintaining that the delivery of certificates of stock to his testator was essential; while it was insisted by the defendants that a transfer of the stock to him on the books of the company was what was necessary, and all that was requisite. We think the defendants’ theory the correct one. The end the parties intended to accomplish was to confer upon the plaintiff’s testator the title and ownership of the stock contracted for. The delivery of the certificates from one party to the other would leave the title to the stock just where it was before. The only effectual mode of transferring the title was by a transfer on the books of the company, and by that means only.
The eighth section of the amended charter of the North Missouri Railroad Company, (Sess. Acts of 1853, p. 325-6,) provides that, “ when payment for the stock of any subscriber or stockholder shall be fully made, the president and directors shall deliver one or more certificates of such stock, signed by the president, and countersigned by the treasurer, under the seal of the company, to such subscriber or stockholder, for the munber of shares belonging to him or her, which certificates shall be transferable in a book to be kept for that purpose by the company, and, when transferred, shall be delivered up to the president and directors and be cancelled, and new certificates be issued to the assignee.” In the Agricultural Bank v. Burr, 11 Shepley (Me.) R. 263, shares
II. The second instruction asked by the plaintiff assumes that the measure of the damages for the breach of the contract sued on is the value of the note, which was the consideration of the defendants’ promise.
Where there has been a rescission of a contract for the sale and delivery of chattels, the vendee may sue and recover from the vendor the value of whatever he paid on the contract; but where the contract is still existing, and suit is brought upon it, as in this case, the measure of damage is not the price or value of the thing paid by the plaintiff, but the market value of the chattel, to be delivered at the place of delivery and time of the breach. (Sedgwick on Dam. 282 et seq.) There is no error in the court below, and its judgment is therefore affirmed.