42 N.J.L. 421 | N.J. | 1880
The opinion of the court was delivered by
The problem which the court is called on to solve, in this case, arises out of the following transaction: The defendants, in the court below, and who are now the plaintiffs in this writ of error, were stockholders in the Citizens’ Gas Light Company of Newark, when the board of directors of that corporation passed a resolution declaring a scrip dividend of ten per cent, on the amount of the capital stock, with interest, payable at the option of the company, and in pursuance thereof, issued to the defendants the certificate set out in the special verdict, and which, through the mediation of a broker, was purchased of them by the plaintiff. This instrument certifies that the defendants are entitled to the sum of $1640, “payable ratably with other cer ■ tificates issued pursuant to said resolution,” at the pleasure of the company, with interest at the rate of seven per cent, per annum. It is further found that, in a certain suit in the Court of Chancery, that this and the other certificates of-indebtedness of the same class, were illegally and fraudulently issued, and it was decreed that they should be delivered up to be canceled. This having been done, the defendant in error brought this action to recover the money paid by him in this transaction.
The defence set up to this claim is, that there was no warranty annexed to this sale, and that the plaintiff got the certificate of indebtedness, which was the thing he bargained for.
But this position rests, plainly, I think, on a false basis. The plaintiff did not bargain for the certificate, but for the money of which the certificate purported to be the evidence of title. It serves to simplify the point to keep in mind the
Looking thus at the facts before the court, in the light of legal principles, I have felt no difficulty in reaching this .result, nor do the authorities appear to be in any degree adverse to such a view. The only case to which my attention has been called, that seems to wear a hostile semblance, is that of Lettauer v. Goldman, 72 N. Y. 506, but, on examination,'
The other decisions, as it appears to me, lay down principles that fayor an affirmance of the present judgment. Among these, Young v. Cole, 3 Bing. N. Cas. 724, is a case of mark. In that case, the plaintiff was a stock broker, and had sold for the defendant four Guatemala bonds, and had paid him the price. The bonds, after they had been in the hands of the purchaser two days, were discovered to be worthless, for want of being properly stamped; thereupon, the broker took them back, and, having reimbursed the purchaser, brought suit against the person for whom he had made such sale. It was held he was entitled to recover. The court, in assigning its reasons for this course, said: “ It seems, therefore, that the consideration on which the plaintiff paid his money, has failed as completely as if the defendant had contracted to sell foreign gold coin, and had handed over counters instead.” In the case now pending, what was purchased was a debt due from this gas company, and what was received was a paper which, at the time, had no value, and which never had possessed any.
Gompertz v. Bartlett, 2 E. & B. 849, is a case noticeable in this connection. An unstamped bill of exchange, endorsed in blank, was sold without recourse by the holder, who was not a party to the bill. The instrument proved to have been drawn in England, and was unavailable for want of a stamp,
Nor should these remarks be closed without a reference to the important case of Thrall v. Newell, 19 Vt. 208, in which it was decided that an assignment that described the instrument assigned as “a note,” amounted to a warranty that such note was a valid one so far as respected the capacity of the maker to enter into the contract. In that case, the note was void because of the insanity of the drawer of the note, and it was held that the money paid for such note could be recovered. The court also express a very decided opinion that if the affair had been devoid of any written contract, the defendant would have been liable to repay the money received by him for such void instrument, inasmuch as a warranty of the legal existence of the note would have been implied by law from the sale of it.
The cases cited in the brief of the counsel of the plaintiff in error, appear to me wanting in pertinency. They are decisions elucidating or enforcing the rule of caveat emptor, which it is insisted applies as well to a sale of stocks as to
The judgment should be affirmed.
For affirmance—The Chief Justice, Dixon, Knapp, Mague, Parker, Reed, Scudder, Van Syckel, Clement, Dodd, Green, Lati-irop, Wales—13.
For reversal—None.