Van Allen v. The Illinois Central Railroad Co.

vendor may make the tender, and require the determination of the election at any time, and so, also, the option will continue, until one or the other terminates it by demand and tender of performance.

Whatever may have been the views of the defendants at the time of the original subscription, it is obvious that in March, 1854, the board of directors understood, and acted upon the assumption, that the subscribers were not only not limited to the time when they paid the last installment, in making their election, but that the option given to them was an election to become subscribers for stock, if they saw fit; and their action on that day recites that as to some of the rights of subscribers, no particular time for making such subscription or determining that option had been specified; and they recognize the duty on their own part to take some affirmative action to determine that option.

If, instead of attempting arbitrarily to fix a future day named, and declaring that no subscription should be made after that day, they had tendered to the plaintiff his stock, and demanded payment of the assessment of five dollars, and he had refused to accept the stock and pay the assessments; there would be great force in their claim, that such refusal terminated the right of choice, or rather was an exercise of his right to choose, and ended all claim of right to subscribe at a future time.

But it is plain, I think, that no ex parte action of theirs could alter the contract with the plaintiff, affect his right to stock, or terminate his option, if this right was a right of option, instead of a title to scrip for stock.

These views make the contract between the parties in all respects reasonable and just, and well calculated to promote the objects of the charter. They show no undue restraint upon the company, in respect of its power to issue the stock of the company and call in assessments, as they might be required. They give no unreasonable advantage to subscribers to the loan, serving as a cover for "speculation upon the rise and fall of shares." They

Van Allen v. The Illinois Central Railroad Co.

place the company and the subscribers on an equal footing in this respect; and enable the company to terminate the option or the right to the scrip on tender of delivery and demand of paymemt of the assessments, or by forfeiture, as in case of an actual subscription; while the subscriber's right to take stock continues until he is put in some default by a refusal to accept it.

The limitation contended for, which would limit the subscriber's right to October, 1854 (the time until which the subscribers might, if they thought proper, defer the last installment of the loan), is so inconsistent with the former suggestions, and especially with the provision that enabled any subscriber to pay as much earlier as he chose, and declared him entitled to scrip on and after October, 1852, on presentation, &c., provided all the installments had then been paid, that it does not seem to me necessary to enlarge upon it.

It is argued that the memorandum at the foot of the provisional certificate, in the words "N. B. The exchange of the provisional certificates for the scrip certifieates is limited to 1st January, 185," shows that a time for its exchange was in fact limited, and gave the plaintiff notice thereof; so that it became in effect the agreement of the parties.

If it showed him that it was limited, to what time did it apprise him the limit attached? There is no proof of an actual previous agreement, other than what has been already considered. There is no proof of any action of the company by any resolution, fixing an express limit, until March, 1854; when their resolution indicates that, as to some of the subscribers at least, no limit had been fixed.

The delivery of the provisional certificates to the plaintiff, without inserting a date, would only suggest to him that whatever arrangement the defendants might make with others receiving provisional certificates, they fixed no such peremptory limit to his right; and to this, as I think, must be added, the company had no right, without. the plaintiff's consent, to insert any such date, so as to

Van Allen v. The Illinois Central Railroad Co.

insist afterwards that he assented to it by accepting the certificate.with the memorandum.

The considerations suggested necessarily lead to the result, that down to the 22d day of January, 1857, the plaintiff's right to stock, or scrip for stock, continued in full force. The defendants had done nothing to terminate it, either by tender and demand of the assessments, or by any proceeding, as for a forfeiture for the non-payment of assessments.

The plaintiff had, therefore, a right to tender the amount of the assessments which had been called for, with interest thereon, and demand his scrip; and for refusing to deliver, the defendants are liable.

The only remaining question is, what is the rule of damages?

The general rule is, that on the breach of an agreement to deliver goods, if the money therefor has not been paid, the measure of damages is the difference between the price and the market value on the day on which the goods should have been delivered. (Dey v. Dox, 9 Wend. 129; Davis v. Shields, 24 Wend. 327; Allen v. Dykers, 3 Hill, 593, and 7 Hill, 497; Beals v. Terry, 2 Sandf. 127; McKnight v. Dunlop, 5 N. Y. R. 544; Billings v. Vanderbeck, 23 Barb. 546.)

This rule is applicable to the present case. The reason on which it rests is apt to the situation of these parties. The presumption is, that with the money in his own hands, the purchaser can, on the day the vendor was bound to deliver, purchase other like property; and so he has sustained no damage but the enhanced price he is compelled to pay. So here the plaintiff, on the day he demanded the stock, and when presumptively he had need of the stock, could have purchased it at its market value; and his loss would have been, and in judgment of law it was, the difference between the sum it was necessary to pay in the market to buy the stock, and the amount of the assessments and interest which he tendered to the defendants.

A refusal to deliver or transfer stock, which is to be paid for, is in strict analogy to the rule governing the sale

Van Allen v. The Illinois Central Railroad Co.

of chattels, where the price has not been paid. See Allen v. Dykers, supra; Gray v. Portland Bank (3 Mass. 364).

That in cases where the purchaser has paid his money, and so presumptively has it not in his power to buy other like goods, &c., on the day when delivery should be made, the rule of damages is the highest market value from the day when delivery should be made, down to the time of the trial, has been repeatedly held in this State; West v. Wentworth, (3 Cowen, 82;) Clark v. Pinney, (7 Id. 681;) Potter v. Hopkins, (25 Wend. 417;) and the like rule was applied to a refusal to permit a transfer of stock which the plaintiff had already bought and paid for. (Kortright v. Com. Bank of Buffalo, 20 Wend. 93, and 22 Wend. 348.) The correctness of this rule has been much questioned, and there is great conflict of authority on the subject. See the subject discussed, and the cases in England and in this country collected, Suydam v. Jenkins (3 Sandf. 614); Sedgwick on Dam., ch. 10, 2d ed., pp. 260-275, and notes; Mayne on Dam., pp. 81-87.

I do not pursue that discussion, because I think that this case is to be decided upon the rule applicable to nondelivery when the price has not been paid, as above stated; and as to that rule, the authorities are, I think, uniform.

The plaintiff is, however, entitled to interest from the day he demanded the scrip on the difference between the market value and the price he was to pay. The case of Dana v. Fiedler (2 Kern. 41), sustaining the dissenting opinion in the same case (1 E. D. Smith, 483), settles this, and affirms the rule of damages above stated. See, also, Sedg. and Mayne, above cited, and Suydam v. Jenkins (3 Sandf. 614).

Judgment should, therefore, be entered for the plaintiff for $26,812.50, with interest from January 22d, 1857 (when the scrip should have been delivered), and his costs of suit. MONCRIEF and ROBERTSON, J. J., concurred.

Judgment for the plaintiff.

Dorrity v. Russell.

FARREL DORRITY, Plaintiff and Respondent v. JOHN RUSSELL and PATRICK DANVERS, Defendants and Appellants.

1. Where, on the trial of an action by one of several partners who had withdrawn from the firm, against the other partners, to recover the value of plaintiff's interest in the assets, on the 2d of April, 1856, a witness for the plaintiff (also one of the partners) testifies to his then estimate of the value of such assets in the latter part of 1855, and that he sold his interest to the defendants in November, 1855, the defendants have a right, on the cross-examination of such witness, to prove by him for what sum he so sold such interest.

2. The rejection of such evidence, under such circumstances, is error, for which judgment against the defendants should be reversed.

(Before WOODRUFF and MONCRIEF, J. J.)

Heard January 8, decided February 9, 1861.

APPEAL by the defendants from a judgment against them. The action was tried before Mr. Justice HOFFMAN, without a jury, December 3, 1859.

The parties herein had been partners, together with one William W. Vanderbilt, and had contributed equally to the partnership capital, and were to be in all respects equal partners.

They had provided, by their partnership agreement, that either might withdraw, on six months' notice, and that in case of such withdrawal the continuing partners might state an account, and go on with the business, and have one year to pay their balance to the retiring partner. The plaintiff, pursuant to notice served September 14, 1855, did withdraw on April 2d, 1856.

The other partners continued the business until in November, 1855, when Vanderbilt sold his interest to the defendants. This suit was commenced in January, 1858, to recover the value of the plaintiff's interest at the time of the dissolution (April 2, 1856).

The pleadings are sufficiently stated in the opinion of the court. On the trial, Vanderbilt was a witness for plaintiff, and testified to the value of the partnership pro