Merriam v. Kellogg , 58 Barb. 445 ( 1871 )

By the Court, Ingraham, P. J.

The complaint in this case alleged a sale of stock by the plaintiffs to the defendants, at a specified price, deliverable at the option of the buyers within four days. It also averred that the buyers did not exercise that option, and alleged a tender of the stock, on the fourth day, to the defendants, and a demand of payment, which was refused. It also averred that the price of stock on the day when it was tendered, was $87 per share, being $21 per share less than the contract price, and that the defendants had not paid for the stock. The defendants demurred to the complaint, on the ground that the same did not state any cause of action. ' Judgment was rendered for the defendants, on the demurrer. The plaintiffs have their election either to tender the property and demand payment, and then sue for the purchase money, treating the property as belonging to the vendee, or to keep the property and sue for damages for breach of the contract. (Bement v. Smith, 15 Wend. 493.) The, chief justice says an averment of a tender of the article sold, by the plaintiff, and a refusal of the defendant to receive it, would have been sufficient; and if so, it seems rather technical to turn the plaintiff out of court when he has proved all that was necessary to sustain his action.

The defendants seek to sustain this judgment upon the ground that the plaintiffs should have averred a sale, and then recovered the difference. It is not necessary to decide whether it was necessary tp sell the article before a recovery of damages could be had, because the complaint shows a good cause of action for the contract price. Where the article agreed to be sold is stock, it is not necessary to sell it in order to ascertain its value; and if the value of the stock can be ascertained daily, without a sale, a sale becomes unnecessary.

The defendants claim that, for the purpose of recovering the value of the stock from them, the plaintiffs should aver that they had kept the stock, and were ready to deliver it. That is not a necessary averment. In Hagar v. King, (38 Barb. 209,) Smith, J., says: “As the action is brought upon the contract for the purchase of the bonds, the plaintiffs were bound to prove a tender at the time specified in the contract, and having done so, they would not be bound to prove that they kept them for the defendant. Upon the trial they might have been required to have them ready for delivery.”

There is a class of cases in which the plaintiff suing on such a contract has been allowed to prove a resale of the property, so as to charge the vendee with the difference. Such a case is Pollen v. Le Roy, (30 N. Y. 549;) and Lewis v. Greider, (49 Barb. 606,) is another. In those cases the question was whether the resale could be justified, for the purpose of fixing the amount of damages, and not as necessary to the plaintiff's recovery.

[First Department, General Term, at New York, February 7, 1871.

It is not necessary to discuss this question, as the complaint shows a good cause of action to recover the contract price of the stock sold.

The judgment should be reversed, and judgment ordered for the plaintiffs on demurrer, with leave to the defendants to answer, on payment of costs.

Ingraham, P. J., and Geo. G. Barnard, Justice.]