Hotel Co. v. Redington , 55 N.H. 386 ( 1875 )

I am also of the opinion that neither of the new counts proposed by way of amendment in this case can be allowed. The first clearly sets up all entirely new and different cause of action, namely, the breach of a special contract to take and pay for fifty shares of stock in the plaintiff company, according to the terms of that contract. The second, which is in effect for not accepting the same number of shares bargained and sold, would seem to come very nearly if not quite within the doctrine of Bailey v. Smith, 43 N.H. 409, if shares in such a corporation could for this purpose be properly regarded as goods, wares, or merchandise. But I think they cannot. A share certainly does not answer the definition of either of those words in its generally received import, nor does it come within the legal definition of a chose in action. It has been defined to be a right to partake, according to the amount of a party's subscription, of the surplus profits obtained from the use and disposal of the capital stock of the company to those purposes for which the company is constituted. Aug. Am. on Corp., sec. 557. It is well settled in England that stock in incorporated companies is neither goods, wares, nor merchandise, within the statute of frauds, and that therefore a contract relating to the sale and transfer of them need not be in writing. Humble v. Mitchell, 11 A. E. 205; Dancurft v. Albrecht, 12 Sim. 189; Hargreaves v. Parsons, 13 M. W. 561.

I think the same rule may be properly applied in determining the admissibility of the proposed amendment in this case, and therefore that the second amended court cannot be allowed, upon the doctrine of Bailey v. Smith.