
    *The Orange & Alexandria Railroad Company v. Fulvey, for Cowherd. Same v. Cowherd.
    April Term, 1867,
    Richmond.
    (Absent, Rives, J.)
    r." Judgments —Erroneous—Correction of. — Where plaintiff who has recovered a judgment which, as rendered, is clearly erroneous, seeks to avoid a reversal by striking out a part of the judgment, it is incumbent on him to satisfy the court either by materials in the record or by fair presumption,' that this can be done without injustice to the defendant. If he cannot do this the defendant is entitled to have the erroneous judgment reversed.
    2. Same — Specific Performance. — A court of law cannot render a j udgment th at defendant shall deliver to plaintiff so many shares of stock. Upon a contract to deliver Stock in payment of a debt or otherwise, a court can only award damages for the failure to deliver it.
    3. Contracts — Delivery of Stock — Breach—Damages.— Upon a contract to deliver stock the damages for the failure to deliver it, is the value of the stock at the time it ought to be delivered.
    4. Judgments — Presumption—Case at Bar. — Judgment for a certain sum of money; but it may be discharged by the transfer and delivery, within six months, of certain stock at par. The stock not having been delivered within the time, on motion for exeention on the judgment, the court cannot presume that the sum stated in the judgment is the amount the plaintiff was entitled to'recover, and rejecting the latter part of the judgment as surplusage, award exeention thereon for the money.
    These two cases were heard together in the Circuit court and in this court. The question in both is the same, *and ■the facts are almost identical. They are motions founded on judgments rendered by the Circuit court of Culpeper at a special term of the court held on the 25th day of July, ‘ 1857. The judgment in the first case is as follows:
    This day came as well the plaintiff as the defendant by his attorney, and agreed that the fact and the law in this case, so far as they are concerned therein, shall be determined by the court without the intervention of a jury, and the said parties being fully heard, and Eichard Chapman, Daniel Fulvey and Peter Mack alleged to be claimants of th subject matter of controversy in this suit, having been duly summoned to appear here and assert their claim, and being solemnly called and not appearing, it is considered by the court that the plaintiff is the party entitled to recover in this cause of the defendant, for the use and benefit of Coleby Cowherd, the sum of five hundred and thirty-eight dollars and two cents, with interest thereon at the rate of six per cen-tum per annum from the 1st day of January, 1853, until paid, and the costs expended by the plaintiff in prosecuting this suit. But this judgment may be discharged at any time within six months from this date, by the payment to the plaintiff of the costs aforesaid in money, and transferring to him in due form of law, stock of the Orange & Alexandria railroad company at its par value, to the amount of five hundred and thirty-eight dollars and two cents, and by paying over to him the dividend declared on said stock, or the scrip issued in lieu of said dividend, with interest thereon to'that amount, since the 1st day of January, 1853; and the court declares that the said Eichard Chapman, Daniel Fulvey and Peter Mack shall be forever barred of any claim in respect to the subject matter of this suit against the Orange & .Alexandria ' railroad company.
    *The judgment in the second case was like the foregoing, except that it was for $448.41, with like interest.
    On the motion of the plaintiffs in these judgments made at the July term 1858, of the Circuit court of Culpeper, it was ordered that the defendant be summoned to appear on the first day of the next term, to show cause, if any he can, why the plaintiff should not be allowed to sue out executions of fieri facias, or such other process as he was entitled to have, to enforce satisfaction of the judgments. These summons having been served, the motions were heard at the special term of the court held on the 23d day of December, 1858, when the court entered the following judgment in the first case:
    This day came the parties, by their attorneys, and being fully heard, and the defendant having failed to show cause against what follows, it is considered by the court that D. Fulvey, for the use of Coleby Cowherd, be allowed to sue forth on the judgment referred to in this rule, his execution of fieri facias, or any proper process of execution which he may be advised to sue forth, in order to have satisfaction of the judgment in the proceedings mentioned and referred to; and that the plaintiff recover against the defendant his costs by him about his motion in this behalf expended.
    There was a similar judgment in the second case, except as to the name of the plaintiff.
    At the instance of the defendant the court certified that the only evidence introduced by,the plaintiff was the rule and the sheriff’s return thereon that it was executed, and the judgment in the proceedings mentioned ; and the only evidence introduced by the defendant was the letter and affidavit of A. E. Freeman, which is given, and proves a tender to Cowherd on the 27th of March, 1858, of the railroad stock at par and the money and scrip which was authorized by the court to be delivered *in satisfaction of the judgment. From these judgments the Orange and Alexandria railroad company obtained a writ of error from this court.
    Though the papers above mentioned alone constitute the record of the causes, there were sent up to the clerk, with these records, copies of the records of the suits in which the judgments were rendered, and a statement of the proceedings in these cases seems to be necessary to an understanding of the cases.
    It seems that Peter Mack was the original contractor to do the excavation on the 86th section of the Orange and Alexandria railroad, under a contract by which twenty per cent, on the estimates for the work done was to be retained until the whole was done, and was then to be paid in the stock of the company. Mack transferred his contract to Daniel Rulvey, who proceeded to do some of the work, and according' to the bill of particulars filed, which purported to be a statement by the engineer and general superintendent of the company, there was due to hinrwhen he transferred his contract in July, 1853, to Cowherd, $538.02, on account of the twenty per cent, retained. And this was transferred to Cowherd. After the transfer of the contract to Cowherd, he proceeded to finish the work on the section, and by the bill of particulars in the second case, which purported to be a statement furnished by the same officer, it appeared that there was due to Cowherd, in cash, $259.97, and on account of the twenty fer cent, retained on the work done by him 448.41.
    In November, 1855, the defendant pleaded “non assumpsit” in both actions; but in June, 1856, it was agreed in the case of Cowherd that the plea should be withdrawn, and by consent a judgment was entered for the plaintiff for $259.97, with interest from the 22d of September, 1854, till paid; and in both cases there was *an entry that the company was ready to pay the residue of the plaintiff’s demand, viz: so much as was payable in stock to whomsoever it was justly payable ; and the defendant was informed that it was claimed by Daniel Rulvey, Coleby Cowherd, and Richard Chapman, as trustee of Peter Mack. And a summons was issued to these parties to appear at the next November term of the court to maintain or relinquish their claim to the stock. This summons was served upon the parties, and at the special term of the court held on the 25th of July, 1857, the judgments were entered which have been hereinbefore given.
    Green, for the appellant.
    William J. Robinson, for the appellee.
    
      
      He was a stockholder in the company.
    
   JOYNBS, J.

The judgment in this case, as it stands, is undoubtedly one which the court could not lawfully render. As a court of law, it could not render a judgment requiring the company to transfer and deliver so many shares of stock to the plaintiff. Upon a contract to deliver stock in payment of a debt, or otherwise, it could only award damages for the failure to deliver it, which would be the value of the stock at the time it ought to have been delivered. But by the contrivance adopted in this case, the court, in effect, gave judgment for the stock, with an alternative judgment for money in case the stock should not be delivered. This judgment was not merely informal and irregular — it was essentially erroneous and illegal.

The judgment must therefore be reversed, unless the errors can be corrected, or unless it -can be shown that the company has no right to complain of the errors. It is contended that the error consists only in the provision allowing the company to discharge the judgment for *money by the delivery of stock. This, it is contended, may be rejected as surplusage, and, more over, the error is in favor of the company, and so cannot be complained of by it.

It may be conceded that the privilege of paying in stock was for the advantage of the company, and does not, of itself, afford a ground of complaint to the company, and also that, by rejecting that part of the order, there will remain a judgment for morfey in sufficient legal form. But can we hold that judgment to be right in substance? In other words, can we say that the sum of money for which the judgment was given, was the value of the stock which the company was bound to deliver to the plaintiff? It is contended that we must presume this in support of the judgment upon the general ground applicable to judicial proceedings. But I do not think we can make such a presumption. In the first place the court has only decided that the plaintiff will be entitled to the sum of money mentioned, provided the company does not, within six months, transfer the stock. This is the substance though not the form of the judgment. I do not see how we can presume from this that the plaintiff was entitled to this sum at once, and without any condition?

Besides, it appears distinctly from the proceedings, that the stock was the only subject of controversy. At June term 1856, there was a judgment for the plaintiff for $259.97, with interest, which seems td have been a part of the plaintiff’s demand which was payable in money. At the same time the company made a declaration, which was entered of record, of its readiness to pay the residue of the plaintiff’s demand, to wit: so much thereof as was payable in stock, to the party who might be justly entitled to demand it; and caused certain parties, alleged to be claimants of the stock, to be ‘summoned to appear and assert their claims, by way of interpleader. After these parties had been duly summoned, the court proceeded to render the judgment complained of, at the end of which was added an order, that the other claimants should be forever barred of all claim against the company in respect to the subject matter.

It is apparent that the only claim upon which the court intended to decide, was the claim to the stock; and that it undertook, by the judgment that was rendered, to compel the delivery of the stock. How it arrived at the sum of money for which it gave judgment, does not appear. It may, for anything that appears, have been fixed upon arbitrarily, as a penalty. I do not think this probable, however, and I presqme the fact is, that it gave judgment for the sum of money appearing by the account to be due to the plaintiff for the twenty per cent, retained on his estimates, and which was to be paid in stock; and this may have been done upon the supposition that the company was bound to pay this sum in money, if it did not choose to pay it in stock. There are papers in the transcript which show that the sum for which judgment was given, was the twenty per cent, retained, but they do not belong'to the record, and cannot be made a ground of decision. Under these circumstances, if they stood alone, I do not think we would be authorized to presume that the sum of money for which judgment was given was the value of the stock. This case may be illustrated by the case of a bond in a penalty, to be discharged by the performance of a collateral act. If the court should render a judgment for the sum named in the penalty, with a proviso that it may be discharged by the performance of the collateral act, within a time limited, could we presume, in support of the judgment, that the court assessed damages for the non-performance of the '^collateral act, at a sum just equivalent to the penalty, and that the sum mentioned in the judgment represented the damages thus assessed? I think not. Other considerations seem to show that this sum was not fixed upon as the value of the stock. The sum for which judgment was given was $448.41, with interest from January 1, 18S3, till paid. If it was the value of the stock, it was its value on the 1st January, 18S3. The court gave the company the privilege of paying this sum in stock at par value, at any time before the 25th January, 1858. Now upon the supposition that the money represented the value of the stock on the 1st da3r of January 1853, there could not be a greater injustice than this privilege to the company. It allowed the company to pay off the value of stock on the 1st day of January 1853, by a transfer of stock, at par value, five years after-wards, though it might have greatly depreciated in the interval. We are not at liberty, upon a mere presumption, to attribute such injustice to the Circuit court. Moreover, after the company had made default in not delivering the stock, and damages to the value of the stock had been awarded for it, it had no right, legal or moral, to pay in stock, and the plaintiff could not be compelled to accept stock. And so, after accepting a judgment for damages, the plaintiff had no right, legal or moral, to demand stock, if he preferred it to the money.

We cannot suppose that the Circuit court disregarded such obvious principles of law and justice. It would, therefore, be at war with every reasonable presumption, to hold that the sum of money for which the court gave judgment represented the value of the stock which the company was bound to deliver to the plaintiff.

It follows from what has been said, that we. are not authorized to reject that part of the order w'hich gives the company the privilege of paying in stock, and affirm the ^residue which gives judgment for the money. That could only be done in case the record showed, or afforded reasonable ground to presume, that the judgment for money was correct. Where a plaintiff who has recovered a judgment w'hich, as rendered, is clearly erroneous, seeks to avoid a reversal by striking out part of the judgment, it is incumbent on him to satisfy the court, either by the materials in the record, or by fair presumption, that this can be done without injustice to* the defendant. If he cannot do this, the defendant is entitled to have the erroneous judgment reversed.

These views render it unnecessary to consider many questions which have been raised in the argument.

The judgment should be reversed, and the case remanded for a new trial.

MONCURE), J., concurred in the opinion of Joynes, J.

Judgment reversed.  