Rankin v. McCullough , 12 Barb. 103 ( 1851 )

By the Court,

Edmonds, P. J.

There is nothing in the objection that the plaintiff sold the stock prematurely. He was to hold it three months only, and that he did; and although the defendant had his three days of grace on his note, he had none on the contract to hold the stock. It was not a contract to hold it till the note became due, but only for three months. Therefore he might sell it before the notes became due.

But the objection as to the place where the stock sold was well taken. The sale at the board of brokers has often been held not to be such a public sale as is required in such cases. What the legitimate consequences of such an irregularity may be, it is not worth our while to inquire; for all the claim set up by the defendant on that account is an allowance for the one per cent which such stock sold for afterwards; that being all which from the evidence he seems to have lost thereby.

There must therefore be a new trial, unless the plaintiff deducts that amount from his verdict; and in case he do, the motion will be denied with costs.

Edmonds, Mitchell and King, Justices.]