
    Colvin vs. Williams.
    Appeal from Baltimore County Court. Assumpsit. The declaration contained five countsj the first, that the plaintiff, (the appellee,) was possessed of two. shares of stock of the Bank of Baltimore', of the value of £1000, of which the defendant, (the appellant,) had: notice, and in consideration that the plaintiff at the special instance and request of the defendant, would sell to him the said, two shares, and that the plaintiff would, in pursuance of suck sale, transfer the stock to the defendant on, &c. he undertook, and then and there promised the plaintiff to pay him the sum of £960, it being the rate or sum of $450 for éach sharp, of the stock, when requested. The plaintiff averred, that he, confiding in the promise and undertaking of the defendant, afterwards, file did sell to the defendant the sail stock, and that the plaintiff hath always been ready, and still is ready, to transfer tiie said stock ill dué form of law to the defend ant. The second count, general indebitatus assumpsit, for two shares of stock, cic. sold by the plaintiff to the defendant The third count, quantum ineruit, for two idiares of stock, Sic. The fourth count, similar to the first count, with an averment that hd offered to transfer the stock, &c. which the defendant refused to accept, &c. The fifth count was a similar count, omitting the averment of an offer to transfer, &c. The general issue pleaded. At the trial the plaintiff offered evidence, that the defendant, having applied to Thomas Barldie., who was a known public broker residing and dwelling in the city of Baltimore, and with whom he was in the habit of transacting business as a broker, to inform him whenever stock of the Bank of BtilUmorc was at the price of j#'-150 per share, as he wished to become a purchaser, but did not specify the number of shares he wished to purchase; and that a certain Benjamin IVillknns, Jumes Cox, and the plaiutiff, did afterwards, on the 22d day of Fe-* bruary 1804, place with Barldie a quantity of shares of stock of the said bank to the number of ten, or upwards, and did authorise Barldie to make sale thereof at the price of $459 per share; that Barldie, being thus authorised, did make out the bill of parcels, a copy whereof is as follows, viz.
    
      Tlie sate of bank stuck is within the sta. tme of frauds of U'J Cur II, ch 3. A broker wlm disposes of .such nock for another, is to be coii'idetcd the agent oi both the owner and the purchaser.
    
      
      5£Salto. 22 Feb. 1804.
    Sir. Hlehard Coloin Bat. of Thomas Barldie, Broker, ---Shares of Baltimore Bank Stock a 450 pr. Share, to be transferred on the 23 instant. $-- And did send the same by If. Boyce his clerk, to the defendant, who received the said bill of parcels, and was informed be might have what shares lie wanted; and after looking over his bank book to see what amount of money he had in bank, the defendant, filled up the blank in the bill of parcels with the number seven, ami carried out on the bill of parcels the amount of the seven shares in money, which he entered thereupon, and having showed to Boyce ihe bill of parcels thus filled up and extended, kept sama ia his possession. The plaiutiff also proved, tint five of the shares mentioned in the bill of parcels were the property, of Benjamin Williams, and that the remaining two shares were the property of the plaintiff, and that at the time of the delivery of the bill of parcels to the defendant, Barhlie did not inform the defendant to whom the seven shares belonged, but that Barhlie, on the 23d of February 1804, informed him that five of the shares were the property of Benjamin Williams., and the remaining two shares the property of the plaintiff; and that B. Williams and the plaintiff, on that day, offered to transfer to the defendant the seven shares; that is, the plaintiff his two shaves, and B. Williams his live shares, upon the respective payment of S450 for each of the shares; but the defendant refused to pay for the seven shares, declaring that he would neither accept of a tiansfer of the said shares, nor pay for the same. That the plaintiff was at that time a stockholder of two shares in the said bank, and B. Williams was at that time also a stockholder of five shares, and that the plaintiff did tender to the defendant the two certificates of his two shares, and B. Williams the five certificates of his five shares, on the morning of the 23d of February 1804, which the defendant refused to receive. The plaintiff then moved the ' court to direct the jury, that this testimony was sufficient, to maintain the first, fourth and fifth counts of the plaintiff’s declaration. The court, (Nicholson, Ch. J. and Hollingsworth, A. J.) gave the direction. The defendant excepted; and (he .verdict and judgment being against him, hé appealed to this court.
    , .The case was argued before Chase, Ch. J. Buchanan, Gantt, and Earle, J.
    
      W. Dorsey, for the Appellant.
    1. The plaintiff below ought not to have recovered on the first and fifth counts of his declaration, and it is doubtful whether he could recover on the. fourth count. To the first count it is not stated that there was a tender of the shares. 2. By the statute of frauds the contract was not binding, unless part of the goods was received, or some note or memorandum in writing given. There must be a contract signed by the party to entitle the plaintiff to recover. Here is a mere sketch of a writing, neither filled up, nor the shares delivered. It is clear that the requisitions of the statute have not been complied with. The intention of that statute was to prevent verbal agreements from being set up. It may be said that Barklie was the agent of both parties; and if so, yet the agreement is not such as the statute contemplates. It floes not state the number of shares, although the price is stated. This is a material omission. 3. If the agreement. is obligatory, yet there is a material variance between the declaration and the proof. The evidence is the sale of seven shares, and the declaration is for two shares. 4. There was no objection that Barklie was a broker, and he might have sued for the seven shares, if this action is correct, seven actions might have been brought; and if this could be done, the statute of frauds would be evaded. There is no evidence on the bill of parcels who the seller was. lie. The action ought to have been in the name of Bark-
    
    
      Ilarper, for the Appellee.
    Although in some cases the agent may maintain an action, yet in every such case the principal or owner may sue. There is a double remedy given. The usual mode is tor the owner to sue in his own name, and this is done every day. There are many sales where Vue principal is not known in the transaction, where it is effected by an agent or vendue, master. If a note is given to the agent, he may sue, but if there is no note, the principal can sue. This is necessary in all sales by agents. Barklie is known to be a broker, and there being no note in this case, the agent, could not sue. It is a special contract, made through the agent, for the respective shares. The shares are not jointly the property of all the owners of shares put in the hands of a Broker for sale, and a joint action could not be maintained. It was a several interest in the whole. If there had been but one share, then it would have been the property of all. This is the case of several persons who happen to employ the same agent to sell their stock. In the proof it appears, that at the same time there was a special contract for other shares sold to the same person. It is a special contract with the plaintiff" for two shares, and with B. PT'illkms for five shares, neither having an interest in the shares of the other. This is not a contract within the statute of frauds. It is for the sale of shares of stock, and is for a kind of property which is not embraced by that statute. The 17th section of the statute says, that “no contract for the sale of any goods, toares or' merchandises;” shall be good, &c. The question is, whether bank stock was Contemplated by that statute? It speaks of goods, in contradiction to real estate. Would it embrace lease-hold estate? The term goods is to be taken in a restricted sense. If the word goods was alone used it might be doubtful, but the three words are tobe taken together, and they were not intended to apply to stock in a Bank. This point has not been finally settled, and is open for decision. The judges in England are divided in opinion. 1 Com. on Contr. 88 to 91. This was a contract executed — > There was a complete sale,- and such an one as the defendant couldbe enforced to perform in a court of equity. The formality was only to be complied with, but the sale was complete, and the stock was vested without a delivery. The sale of a horse at a stable is good without a delivery, and an action may be brought for the horse, if there is no delivery. The defendant had such a right which he could - enforce the performance of. The offer to sell was accepted and agreed upon. It was a complete sale. The transfer could only be made in a particular way, and was not a condition precedent to the payment of the money. If the sale of bank stock is within the statute, then here is a note or memorandum in writing. The bill of parcels was in the hand-writing of Barklie, the agent of both parties. The defendant filled up the blanks, and though he .put it in his pocket, will it be said that it would bind the plaintiff and not the defendant? The defendant, by filling up the blanks, made it his writing. The statute does not say any thing about a signature or a delivery.
    
   The Court

said, that the sale of bank stock is within the statute of frauds; and that Barklie was the common a- . gent of both the appellee and appellant.

JUDGMENT AITIRMEU.  