James v. Hamilton , 9 N.Y. Sup. Ct. 630 ( 1874 )

Talcott, J.;

This was an action upon a note, given on the" sale of stock of the Grand Street and Hewtown Railroad Company. At the time of the making of the note, the plaintiff delivered to the defendant a bill of sale of the stock, reciting that the stock had been that day transferred to the defendant, hut that the plaintiff was to" hold the same for the payment of the note, and containing an agreement on the part of the plaintiff to deliver the stock, specifying the particular certificates, upon the payment of the note. The defendant seeks to treat this as an executory agreement for the sale of the stock, and objects that the plaintiff has never made an actual tender of the certificates, or caused the same to he transferred to the defendant on the books of the railroad company. We think this is not the true interpretation of the papers; but that they import a present and executed sale of the stock, with the agreement that the plaintiff should hold the same as collateral to the note; and that it was unnecessary for the plaintiff to make any tender of the stock, or any formal transfer thereof on the books of the railroad company, until the defendant should have paid the note; or at least until he should tender the amount due thereby. Ho fraud or misrepresentation as to the title to the stock is claimed in the answer, but only that the stock has not been, in fact, transferred or tendered to the defendant. These views seem to answer all the objections and exceptions presented by the defendant, who, in case the plaintiff’s title to the stock should fail, will have his action to recover the value of it when he shall have paid his note.

The judgment is affirmed.

Present—Babnard, P. J., Talcott and Tappen, JJ.

Judgment affirmed.