100 F. 290 | U.S. Circuit Court for the District of Southern New York | 1900
(after stating the facts as above). The several “calls” referred to in the complaint are all in the following form; varying only in date, in the name of the stock, and in the price at which they were offered:
“New York, May 18, 1899.
“For value received, the bearer may call on me on one day’s notice, except last day, when notice is not required: One hundred shares of the common stock of the American Sugar-Refining Company, at one hundred and seventy-*291 five per cent., any lime in fifteen days from date. All dividends for which transfer books close during said time go with the stock. Expires June 2, 180Í), 3 p. m.
‘•[Signed] S. Y. White.”
It is not disputed that, for each and every .one of these signed offers to sell, a valuable consideration was paid to the plaintiff.
The provision of law under which the defendant required stamps to be affixed to these documents is found in section 25 of the act of June 13, 1898, to provide ways and means to meet war expenditures, usually called the “War Revenue Law of 1898.” It is contained in the first paragraph of Schedule A, which prescribes the amount of stamp taxes applicable to the several documents therein set forth. The relevant parts of the paragraph read as follows:
“* * * On all sales, or agreements to sell, or memoranda of sales or deliveries or transfers of shares or certificates of stock * * ® whether made upon or shown hy the hooks of the * * * corporation, or hy any assignment in Wank, or hy any delivery, or by any paper or agreement or memorandum or other evidence of transfer or sale whether entitling the holder in any manner to the benefit of such stock, or to secure the future payment of money or for the future transfer, of any stock, on each hundred dollars of face value or fraction thereof, two cents: provided, that * ® * in case of an agreement to sell * ::: * there shall be made and delivered by the seller to (lie buyer a hill or memorandum of such sale, to which the stamp shall he affixed; and every * * * agreement io sell before mentioned shall show the date thereof, the name of the seller, the amount of the sale and the matter or thing to which it refers.”
This long and intricate sentence is not easy of interpretation. It provides in the first; place for “sales” of stock, and the first question to be answered is, what is a sale? It is a contract, an agreement, a meeting of the minds of two or more persons, founded upon a money consideration, by which the absolute or general property in the subject of the sale is transferred from the seller to the buyer. The latter acquires a property in the .thing sold, which the other parts with. Hee authorities cited in 21 Am. & Eng. Enc. 'Law (1st Ed.) p. 446. This contract may provide for immediate delivery of the thing sold, or for delivery at some future time, for payment of the consideration at once, or upon delivery, or at some future time; but it must provide for a present transfer of the property in the thing sold, or it is not a sale at all. Inasmuch as a sale is a contract or agreement, it is frequently spoken of as a “contract of sale” or “an agreement of sale,” —two phrases Avhieh, in law, mean no more and no less than the word “sale.” Moreover, it is apparent that to a sale a buyer Is as essential as a seller. No amount of offering to sell will make a contract of sale, until some one accepts the offer by agreeing to buy. ■ The transaction evidenced hy the memorandum above quoted is therefore not a “sale,” nor a “contract of sale,” nor an “agreement of sale.” If some one entitled to make the call does, within the time limited, agree to buy the offered stock at the price named, then by a new contract, then first made, a sale is effected. Nevertheless the so-called call is itself a contract. It is an agreement, upon a sufficient consideration, to do a particular thing. There are two parties to it. The first agrees that he will do the particular thing if required so to do within a specified time by the oilier party, or by that other’s transferee. The sec