Appeal from Trial Term, New York County.
Action by Melville D. Chapman against Emily Fowler and others, executors of Anderson Fowler, deceased. From a judgment of dismissal, entered at the close of plaintiff's case, he appeals. Reversed, and new trial ordered.
[116 N.Y.S. 963] Wing,
Russell & Waterson (Burt D. Whedon, of counsel), for appellant.
Richard B. Kelly (Henry B. Twombly, of counsel, and Louis H. Hall, on the brief), for respondents.
Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, LAUGHLIN, and CLARKE, JJ.
The complaint alleged: That on or about November 25, 1905, the plaintiff and Anderson Fowler, deceased, entered into an agreement that the said Fowler should forthwith sell to the plaintiff 1,000 shares of the common capital stock of the Greene Gold Silver Company, for which the plaintiff was to pay $2,250; the said stock to be transferred on the books of the company and delivered to the plaintiff by the said Fowler on March 15, 1906; that on November 25, 1905, plaintiff paid to said Fowler said sum of $2,250 in full of the purchase price; that thereafter on February 9, 1906, said Fowler died, leaving a last will and testament whereby the defendants were appointed executors, which was duly probated on March 13, 1906, and on said date letters testamentary were duly issued to the defendants, who duly qualified; that in violation of said agreement the said stock was not transferred on the books of the company on March 15, 1906, nor was the same transferred until some time thereafter, at which time the said stock had materially depreciated in value, to the damage of the plaintiff; that the plaintiff on March 15, 1906, duly demanded the delivery of said 1,000 shares of stock, but the same was refused.
Upon the trial the plaintiff testified: That on the 15th of March, he asked one of the executors for the delivery of 1,000 shares under his father's contract. " He told me that the affairs of his father's estate were in such shape that he could not make a delivery on that day, and he did not know when it could be made. I said, ‘ the stock is declining, and I want to make a sale and get out of it and realize on my transaction.’ ‘ Well,’ he said, ‘ I cannot help you out. You will have to wait until we clean up a lot of affairs and until we get to it." ’ It was proved that delivery was made on the 12th of April, and that plaintiff made no objection to receiving the stock when it was delivered. It was proved that the stock was transferred on the books of the company on April 10, 1906, and that the difference between the highest price of 1,000 shares of the stock on March 15, 1906, and the lowest [116 N.Y.S. 964] price on April 10, 1906, was $1,500. At the close of the plaintiff's case, defendants moved to dismiss the complaint, and the learned court said:
" It seems to me that having received the stock without protest and without objection, and having retained it ever since, it is not a waiver, but becomes an estoppel. I will grant the motion to dismiss the complaint."
The plaintiff paid full price for the stock to be transferred upon the books of the company and delivered to him upon a fixed future day. There was a breach of said contract, in that upon said day the stock was not transferred to his name upon the books of the company, and upon demand with notice that he desired delivery because the stock was declining, and he wanted to make a sale and realize on the transaction, defendants failed to cause the transfer to be made and failed to deliver until nearly a month thereafter; the value of the stock having very considerably depreciated in the meanwhile. It would seem that the plaintiff had established the essential ingredients of a cause of action, a valid contract upon sufficient consideration, a breach upon demand, and resulting damage, with notice to the defendants of the condition of the market and that a failure to deliver would cause damage.
We are unable to perceive in what way the subsequent acceptance of the stock operated as an estoppel. The plaintiff had the absolute right to the stock. He had paid for it in full and it belonged to him. It was to be delivered upon a day certain. If not delivered, he would have been entitled to the full value thereof by way of damages.
In Ripley v. Æ tna Life Insurance Co., 30 N.Y. 136, 86 Am. Dec. 362, the court said:
" It seems to me that a waiver to be operative must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on the performance of the contract or forfeiture of the condition."
In Stenton v. Jerome, 54 N.Y. 480, the court said:
" It is a principle as old as the common law that a cause of action once vested can only be discharged by a release under seal, or the receipt of something in satisfaction" -citing ...