
    Taylor et al. v. Blair et al.
    
    
      (Supreme Court, General Term, First Department.
    
    January 16, 1891.)
    1. Conditional Sale—Peeeoemance—Tender.
    Plaintiff purchased from defendants 600 shares of stock under an agreement that if at the end of one year from date plaintiff should desire to sell the said shares defendants would purchase the same, and pay for them the amount paid by him,with interest at the rate of 7 per cent, per annum. Held, that a tender of the stock to defendants, properly transferred, at the expiration of the year, was a condition precedent to their performance, and plaintiffs’ right of enforcement of this agreement.
    2. Same—Excuse—Non-Residence.
    In such case plaintiff is not absolved from the necessity of a tender by the fact that defendants were non-residents of the state of the contract when the plaintiff was aware of their non-residence at the time of the execution of the contract.
    Appeal from special term, Mew York «county.
    Action by Henry A. Taylor and others, administrators of Christopher Meyer, deceased, against Thomas S. Blair and Thomas Struthers. Defendants appeal from a judgment for plaintiffs, entered on a verdict directed by the court.
    Argued before Van Brunt, P. J„ and Brady and Daniels, JJ.
    
      Elial F. Hall, (8. P. Nash, of counsel,) for appellants. W. H. Williams, ([Louis C. Waehner, of counsel,) for respondents.
   Daniels, J.

The verdict was directed for the amount held to be payable on a contract entered into by the defendants with the intestate. He had subscribed for 500 shares of the capital stock of the Blair Iron & Steel Company, and paid upon his subscription the sum of $10,000, included with interest in the verdict. To induce him to purchase these shares the defendants subscribed and delivered to him this contract:

“ Whereas, Christopher Meyer has purchase,d 600 shares of the stock of the Blair Iron and Steel Company, sold by A. S. Diven, trustee of said company, at the price of fifty dollars per share, now, we, the undersigned, in consideration of one dollar to us in hand paid, the receipt whereof is hereby acknowledged, do hereby agree that if at the end of one year from this date the said Meyer shall desire to sell the said shares at the price paid for the same by him we will purchase the same, and pay to him the amount paid by him on the same, with interest at the rate of 7 per cent, per annum.

“New York, April 4, 1873. Thomas S. Blair.

“Thomas Struthers.”

And on the 7th of March, 1874, under his authority, a copy of this letter:

“New York, March 7, 1874.

“Mr. Thomas S. Blair and Mr. T. Struthers—Gentlemen: Your agreement, dated April 4, 1873, to purchase from me six hundred shares of the stock of the Blair Iron and Steel Company at the price I paid for the same, with interest at seven per cent., will expire April 4, 1874. I hereby notify you that I desire to sell the said shares under this agreement, and will be ready to receive the amount at any time you will name, prior to April 4, 1874.

“Yours, very truly, Christopher Meyer.

“By A. G. T., Jr.”

—Was delivered to each of the defendants. And on the 4th of April, 1874, the day upon which the agreement was to be performed, the defendant Struthers wrote to the intestate a letter, so far as its contents are in the least degree material to this controversy, in which he stated:

“I was sorry to learn through notice by Mr. Taylor from you that you felt' disposed to place yourself in position to sever your connection with the Blair Iron and Steel Company by parting with your stock. I hope you have not resolved absolutely on taking that step. I thought I had, by encouraging you to subscribe for that stock, done a good thing for an esteemed friend, and I think so still. Mr. Foster says he did not understand you to assign any reason for not paying the call on stock, about which he spoke to you, except the severe loss you had sustained in the bank disaster. I hope, however, the force of that reason has passed, and that your financial position is again right. I felt confident that your ample means would soon raise you above that trouble. ”

The Blair Iron & Steel Company had an office in the city of New York, which, when they were there, was stated by the intestate, in evidence given by him upon a preceding trial, to have been the head-quarters of these defendants, one of whom was the president of the company, and the other, one of its trustees. The intestate employed the witnesses Henry A. Taylor and Albert G. Thorp to act for him in and about the performance of the agreement delivered to him by the defendants. For this purpose they endeavored to find the defendants at the office of the company, but failed to meet them there after the 7th of March, 1874. The witness Thorp was at the office on the 4th of April, 1874, and inquired for the defendants, but had no papers with him by which he could transfer the shares; neither was any offer made by him to the person found in charge of the office, in the absence of the defendants, to transfer the stock to them on the payment of the $10,000 and interest; and no offer to that effect was anywhere made until some time in September succeeding the expiration of the year mentioned in the agreement. At the time designated in it for its performance there was consequently no offer or tender made on behalf of the intestate, who was then living, to perform on his part by transferring or offering a transfer of the shares to the defendants. The complaint did allege that “at the end of one year from the said 4th day of April, 1873, the plaintiff did desire to sell the said shares at the price paid for the same by him, and duly notified the said defendants of such, his desire, and requested the said defendants to accept and receive the said shares, and pay to him the amount paid on the same by him; but the said defendants neglected and refused, and still do wholly neglect and refuse, so to do.” And the position has been taken on behalf of the plaintiffs that the defendants have not denied that they had been requested on the 4th of April, 1874, to accept and receive the shares and pay the plaintiff the amount paid on the same by him. But this is clearly a mistake, for by their answer they have denied “that the plaintiff at the end of one year from said 4th day of April, 1873, duly or otherwise notified them of his desire to sell the said shares at the price paid for them by him, or requested them to accept and receive said shares and pay him the price paid for the same by him; and that they neglected or refused to accept and receive the said shares, or pay to the plaintiff the price paid for the same by him, except for the reasons above set forth, and the reasons hereinafter set forth in the second, third, and fourth defenses of this, the defendants’ answer.” These denials, as they were not afterwards changed, completely put in issue the averment on the part of the plaintiffs that the defendants had been requested to accept and receive the shares and pay the amount which had been paid by the intestate upon them; and before a recovery could be had in the action it was incumbent upon the plaintiffs to prove that on the 4th of April, 1874, they offered or tendered a transfer of these shares to the defendants. That was a condition precedent, according to the terms of the agreement, upon which the right to recover this money depended.

This subject and the authorities bearing upon it were very minutely considered in Lester v. Jewett, 11 N.Y. 453, where it was held that an averment and proof of tender or offer to sell and transfer the stock to the party there contracting to purchase it at the expiration of the time was essential to maintain the right of the other party to recover upon such a contract. And this has been followed in Meter Co. v. Jackson, 3 N.Y. Supp. 826; Rutty v. Fruit-Jar Co., 6 N. Y. Supp. 23; and Pope v. Manufacturing Co., 107 N.Y. 61,13 N. E. Rep. 592. The plaintiffs have endeavored to relieve themselves from the obligation of complying with this rule by reason of the fact that the defendants were absent from the state of New York at the time fixed for the final performance of the agreement. And so they were, but the proof establishes the fact that they resided in the state of Pennsylvania at the time when the agreement was entered into, and that the "intestate, was aware of the fact that they did reside in that state; and accordingly he was bound either to apply to them for the performance of the agreement at their places of residence, or at least, if that would have been sufficient, to make the offer or tender required by the law at their office or place of business in the city of New York. But in each respect there was an entire failure on his part, for no tender or offer of the shares was made at the office nor to the defendants personally. In the case of Hale v. Patton, 60 N. Y. 233, the court held that the defendant was not bound to follow the plaintiff out of the state to pay interest which became due upon a mortgage in order to prevent the principal from becoming due because of a default in payment of the interest for the period of 30 days. But there the plaintiff was a resident of the state, and had absented himself from it at the time when the interest matured; and all that the court held was that readiness, under these circumstances, on the part of the debtor to pay the interest when it became due was sufficient to avoid the principal from becoming due on account of a default of payment. The case contains nothing relieving the intestate from making a tender or offer of these shares either to the defendants personally at their places of residence in the state of Pennsylvania, or at least at their office in the city of New York. The judgment should accordingly be reversed, and a new trial ordered, with costs to the defendants to abide the event. All concur.  