
    Frederick M. Kelley and others v. Francis H. Upton.
    The intention of the parties, in a contract of sale, must be collected from the whole instrument; and, in order to carry that intention into effect, the literal import of the words used may be disregarded.
    The true character of the contract, as executed or executory, depends upon the proper answer to the question, whether it was intended to vest in the purchaser a present and absolute title to the thing sold.
    Where the delivery of the thing sold, and the payment of the price, are to be simultaneous acts, the title, until delivery or payment, remains in the seller.
    Where the acts are to be thus concurrent, the promises of the parties are dependent upon a mutual performance, and neither can maintain an action against the other, without showing, on his own part, an actual performance, or a legal offer to perform.
    Hence, when the contract relates to a future transfer of stock, the seller, to maintain an action for the price, must prove a tender of the stock, before the action was commenced.
    The mere admission, by the purchaser, of his liability, when payment is demanded, does not operate as a waiver of such tender.
    New trial ordered.
    (Before Oakley, Ch. J., and Dder, J.)
    February, 1856.
    This was an action to recover damages, for the breach, by the defendant, of his agreement to purchase from the plaintiffs 3,000 shares of the stock of the Lindsay Mining Company.
    The defence was, that the stock had not been tendered to the defendant before the commencement of the action. The answer also claimed to set-off $875, the amount of a promissory note, which the defendant had placed in the hands of the plaintiffs, as a security for his performance of the agreement, and which it averred they had collected.
    The cause was tried before the Chief Justice and a jury, in November, 1855.
    The following are the proceedings on the trial:—
    The plaintiff called, as a witness, James S. De Mott, who, being sworn, testified: I am in the employment of the plaintiffs, Kelley, Townsend & Company, and was so in April, 1854, and have ever since been in their employment; I know the defendant Upton.
    
      Two paper-writings were shown the witness, and he then said: I called upon the defendant, at his office, in the city of New York, at the request of the plaintiffs, on the 19th day of September, 1854, with these papers; I presented them to the defendant, saying, “Kelley, Townsend & Company want the money on these;” he took the papers and looked them over, and said, “ These are all right, I wish to God I could pay it, but I have not got the money to pay it; parties owing me beg me to let them off a short time, and I can’t pay it now.” I then left, and nothing more was said.
    The plaintiffs then read in evidence the two paper-writings, the first of which was in the words and figures following:
    3,000 shares B. 90. 72J cts. New York, Api. 15,1854.
    I have purchased of Kelley, Townsend & Co., three thousand (3,000) shares of the stock of the Lindsay Mining Company, at seventy-two and one half cents per share, payable and deliverable, buyer’s option, in ninety days, with interest at the rate of six per cent, per annum, and six-and-one-quarter cents per share commission, and have deposited with them one hundred shares of McCullock Gold Company stock, as security for the performance of this contract.
    Francis H. Upton.
    (Endorsed)
    Certified for one hundred shares McCullock Gold Co. stock surrendered, and John L. Colby’s note, dated March 11th, for $875, 7 mo. from date, substituted in place, as collateral security for the performance of this contract.
    New York, May 20th, 1854.
    Francis H. Upton.
    The second was in the words and figures following:
    F. H. Upton, Aug. 29th: 3,000 Lindsay Mining Co., a 721
    Interest and com.,......$2,395 13
    Int. to Sept. 15th,...... 7 92
    $2,403 05
    Sept. 15, 1854. D. Sept. 19, ’54.
    
      The plaintiffs then tendered, in court, to the defendant, a certificate of stock, and an assignment thereof, from the said plaintiffs, duly endorsed thereon. The certificate was of 3,000 shares of the stock of the Lindsay Mining Company of Korth Carolina, and bore date the 4th October, 1854.
    The plaintiffs then rested their case.
    The defendant’s counsel then moved to dismiss the complaint, on the grounds—
    1st. That the plaintiffs had not proved any tender of the stock before suit was brought.
    2d. That there was no evidence that the plaintiffs were the owners of the stock at the time of the sale thereof.
    The court denied the motion, and the counsel excepted.
    The court thereupon directed a verdict for the plaintiffs, for the sum of $1,665.31, being the amount claimed, less the payment or set-off in the proofs and answer set forth and referred to, subject to the opinion of the General Term, upon a case to be made.
    The cause was now heard upon the case so made.
    
      J. T. Williams, for plaintiff,
    in moving for judgment upon the
    verdict, insisted that, from the terms of the contract, a tender of the stock was not necessary, before the bringing of the action. I contend, (he said,) that it was an executed contract, and a title to the stock passed immediately to the defendant, the plaintiffs retaining it merely as a security. The language of the contract, “ I have purchased,” showed this. Had a future sale been intended, the language would have been, “I have agreed to purchase.” The case of Lester v. Jewett, which will be relied on by the other side, (1 Kernan, 453,) was an agreement to purchase, and so were all the cases there cited. The doctrine of that case is confined to ex-ecutory contracts. The fact that there was not an immediate delivery of the stock is of no importance. The precedents and the authorities show that such a delivery is not essential to a sale. (2 Chitty’s Plead. 56; 1 Cowen’s Treat., 3 ed., 116, 117; Starkie on Evid., 873; 1 Parsons on Cont., 438, 441.) Again, the evidence of De Motte shows, that even if a tender were necessary, it had been- duly made, or was waived by the defendant. As he declared his inability to pay, a tender would have been a mockery. (10 East. 159; 5 B. & Aid. 712.) It was not necessary for the plaintiffs to prove that they owned the stock when the contract was made. Their not owning it, if the statute reaches the case, was a matter of defence, but no such defence was set up in the answer, or was offered to be proved upon the trial. The words of the contract, “ I have purchased,” are an admission that the plaintiffs then owned the stock.
    
      E. W. Stoughton, for the defendant.
    In every case of a mutual agreement, where the thing to be done by the one party, is the consideration of that which is to be done by the other, and both are to be done at the same time, the promises are dependent, and neither can recover against the other, without showing a performance on his own part, or a tender to perform. (Thorp v. Thorp, 1 Salk. 112; Pordage v. Cole, 1 Saund. 320; Bank of Columbia v. Wayne, 1 Pet. 255; Parker v. Parmlee, 20 John, 130; Lester v. Jewett, 1 Ker. 354, and other cases.) Here, the precise character of the agreement of the parties is that which has been stated. The plaintiffs agreed to sell, and the defendant agreed to buy, a certain quantity of stock, which was to be delivered by the plaintiffs, and paid for by the defendant, on a future day. The words of the contract are, “ payable and deliverable (buyer’s option,) in ninety days,” clearly showing that the acts were to be concurrent. The proof clearly shows that no tender of the stock was ever made before the suit was commenced, and the plaintiff was certainly not bound to accept the tender made upon the trial. As to'the evidence that has been relied on, as' excusing a tender, or proving that it was waived by the defendant, it was not admissible, under the pleadings, (Garvey v. Fowler, 4 Sand. S. C. Rep. p. 665,) and if admissible, was plainly insufficient. There is still another ground upon which we insist that the plaintiffs are not entitled to recover. We submit that it was incumbent upon them to prove, to show the validity of the contract, that, when it was made, they were the owners of the shares of stock which they agreed to sell. Here, the certificate produced upon the trial, proved, in effect, that they were not the owners until October, 1854, nearly a month after this action was brought.
    We ask, that the verdict be set aside, and the complaint be dismissed, or a new trial ordered.
   By the Court. Oakley, Ch. J.

Notwithstanding the words “I have purchased,” literally construed, may bear the interpretation that has been given to them, we are clearly of opinion, that the contract upon which this action was founded, was not executed, but executory; not an actual and present sale, but an agreement to sell, to be carried into effect on a future day. The intention of the parties, in agreements of this nature, is to be collected from the whole instrument; it is the intention, thus collected, that the court is bound to carry into effect, and in doing so, the literal import of particular words, when inconsistent with the intention, thus ascertained, may be, and, in numerous cases, has been disregarded. (3 Duer, 309.) In Decker v. Furniss, (3 Duer, 292,) the instrument, which related to the sale of a steamboat, began with the words, “ W. H. Brown sells to M. P. Furniss the one-half of the steamboat Rhode Island,” yet, in reversing the judgment of this court, the Court of Appeals held that the contract had not the effect of vesting an immediate title in Furniss, but was an agreement to sell, and not a sale, and that, although the words used denoted a present transfer, a future only was intended. In determining the true character of a contract of sale, as executed or ex-ecutory, the question must always be, whether the intention was to vest in the purchaser an immediate and absolute title to the thing sold, without reference to the payment of the price, or whether the delivery of the thing, and the payment of the price, were to be simultaneous acts, for in this last case, it is certain that, until delivery, the title remains in the seller. (9 M. & N. 312; 2 B. & Ald. 329; 18 John, 434; 6 Wend. 77; 1 Denio, 591.) And we deem it to be equally certain, that where delivery and payment are to be concurrent acts, the promises of the parties are dependent and conditional, and neither, therefore, is entitled to bring an action against the other, for his refusal to perform, without showing, on his own part, an actual performance, or a legal offer to perform. (Lester v. Jewett, 1 Kern. 454.)

Applying these rules to the contract before us, it seems to us quite evident, that it was not the intention of the plaintiffs to give to the defendant a present and absolute title to the stock, so as to enable him, at once, to claim its delivery, without paying, or offering to pay, any portion of the stipulated price; yet such was the necessary consequence, if the defendant became the owner of the stock "by the mere execution of the agreement. As to the allegation, that the plaintiffs were to retain the possession of the stock, as their security for the payment of the price, we regard and reject it, as simply gratuitous, since the agreement contains not a solitary phrase from which an intention to pledge the stock, as belonging to the defendant, can be inferred. But if the plaintiffs, without payment, were not bound to deliver the stock, it seems to us, there is no room for the supposition, that the defendant was bound to make the payment, whether the stock was delivered or not; that his promise was independent and absolute, while that of the plaintiffs was conditional. If the payment of the price, by the defendant, was a. condition of the obligation of the plaintiffs to deliver the stock, we are clear in the opinion, that the delivery of the stock by the plaintiffs, was equally a condition of the obligation of the defendant to pay the price. The doubtful words, “ I have purchased,” upon which the entire stress of the argument for the plaintiffs was laid, are, in our judgment, controlled and explained by the subsequent words, “payable and deliverable, buyer’s option, in ninety days,” for these last admit but one interpretation, and conclusively show, that the payment and delivery were to be made at the same time, and, consequently, that the promises on both sides, were dependent and conditional. The agreement, therefore, was for a future transfer of the stock, and was not an executed sale.

It follows, that the plaintiffs can have no right to maintain this action, unless they have shown that they made a tender of the stock, to the defendant, before it was commenced, and not merely » demanded payment of the price; or unless they have shown, and under the pleadings, had a right to show, that a tender was excused or waived. We do not think that any part of this necessary proof has been given.

It is not alleged, that there is any positive and direct proof of a tender, nor can we draw, as we were urged to do, from the language of the defendant, when payment was demanded, an admission that a tender had been previously and duly made. The inference that such was his meaning would be unwarranted, and such as a jury could never be permitted to draw.

Kext, as to the evidence, that a tender was waived.

We agree with the counsel for the defendant, that, according to the decision in Garvey v. Fowler—which, although the decision of a single Judge, was approved by his brethren, and has since been uniformly followed—evidence to prove a waiver, under the complaint, as framed, was not admissible. . The principle of that decision is, that where facts, excusing the performance of a condition precedent, are meant to be relied on, as a ground of recovery, they must be stated in the complaint, since such facts, as material and issuable, constitute, in part, the cause of action. And it cannot be denied, that this principle is plainly applicable to the case before us. Still, had facts amounting, in reality, to a waiver, been proved upon the trial, we will not say that the complaint might not be amended, upon terms, so as to let in the proof, hereafter; but the total insufficiency of the proof that was given, relieves us from the necessity of considering that question. Nothing more was proved than an admission, by the defendant, of his liability to satisfy the claim of the plaintiffs; but we were referred to no authorities, to show, nor can we believe, that such an admission operates as a waiver of the performance of a condition precedent.

Upon the other questions that were argued by the counsel, we do not think it necessary to express an opinion.

The verdict for the plaintiffs must be set aside, and there must be a new trial, with costs to abide the event.  