
    (82 Hun, 449.)
    STOKES v. MACKAY et al.
    (Supreme Court, General Term, First Department.
    December 14, 1894.)
    1. Sale—Goods under Fledge—Ability to Deliver.
    Whether or not a seller of bonds which he had pledged was able to perform at the time the buyer waived tender is a question for the jury where plaintiff testified that he was able to obtain the bonds from the pledgee, while defendant adduced evidence to the contrary.
    2. Same—Production on Trial.
    In an action for the price of bonds agreed to be sold by plaintiff to defendant, a waiver by defendant of tender before the action was brought does not dispense with the necessity of producing the bonds on the tidal as condition precedent to recovery.
    
      3. Appeal—Objections not Raised Below.
    An objection that the bonds were not produced on the trial in such case cannot be raised for the first time on appeal.
    Appeal from circuit court, New York county.
    Action by Edward S. Stokes against John W. Mackay and Hector De Castro. From a judgment entered on a verdict in favor of plaintiff for $94,006.53, defendants appeal.
    Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
    Joseph Larocque, for appellants.
    Eselt Cowen, for respondent.
   PARKER, J.

The merits of this controversy were fully discussed in this court on a former appeal, resulting in a holding that the trial court properly directed a verdict in favor of the plaintiff. 19 N. Y. Supp. 918. With this decision the court of appeals differed, deciding that there were certain questions of fact which should have been submitted to the jury for their determination. 140 N. Y. 640, 35 N. E. 786. On the retrial these questions of fact were submitted to the jury, resulting in a verdict in favor of the plaintiff. As the testimony relating to the main features of the controversy was substantially alike on both trials, there would seem to be open for consideration in this court only such questions as are presented by exceptions taken to the rulings of the court in admitting or rejecting evidence, and to exceptions taken to the charge of the court, or of refusals to charge .as requested. Upon the argument, we were strongly impressed with the contention of appellants’ counsel in respect to the alleged failure of the plaintiff to make a proper tender of a portion of the bonds which were the subject of the contract, having a face value of $165,000, coupled with the fact that a portion of such bonds were at the time of the trial, according to plaintiff’s admission, pledged as collateral for certain loans made to him. Our examination of the subject, however, persuades us that the appellants’ position is not well taken; and, notwithstanding the fact that the question seems to have been passed upon on the former appeal, it may not be out of place to briefly state the reasons for our conclusion that the trial court did not err in refusing to direct a verdict upon the grounds assigned by defendants’ counsel.

It is not pretended that the plaintiff ever made a formal tender of $115,000 of bonds which were at the time of the making of the contract, and for some time thereafter, pledged with the Western National Bank as security for a loan to plaintiff. Of the remaining $50,000 of bonds, he did everything by way of delivery that was possible. It appears that these bonds were loaned by the plaintiff to the defendant De Castro prior to the making of the contract, and by him pledged to the Madison Square Bank as collateral to a loan to De Castro; and, as he was one of the vendees in the contract, pláintiff, for the purpose of effectuating a delivery of the bonds, gave to him an order upon that bank to deliver to him the bonds when his debt should be paid. As to the $115,000 of bonds, there is evidence that plaintiff, in pursuance of instructions given him by Ms counsel, offered to turn over the bonds, at the same time demanding that the balance of the purchase price, to wit, $75,000, be paid him; that he informed defendant De Castro that he had been instructed to make a formal tender of the bonds, to which De Castro replied that he would waive the tender, that Mr. Maekay had told him that these bonds belonged to him (Mackay), and repudiated plaintiff's having any interest in them whatever, and that there was no use in his taking the trouble to make a formal tender. According to the testimony of the plaintiff, then, it appears that the defendants not only refused performance of their contract, but, in language as forcible as could be employed for the purpose, attempted to waive anything like a formal tender of the bonds. It is too well settled to admit of further questioning that where a party refuses to perform, and distinctly waives a tender of performance by the other party to the contract, it is unnecessary for him to go through with the form of making a tender, in order to entitle him to recover either the purchase price of the thing agreed to be sold, or damages for a breach of the contract. Baumann v. Pinckney, 118 N. Y. 604, 23 N. E. 916; Lawrence v. Miller, 86 N. Y. 131; Blewitt v. Baker, 58 N. Y. 611; Nelson v. Elevating Co., 55 N. Y. 480; Bunge v. Koop, 48 N. Y. 225; Moses v. Bierling, 31 N. Y. 462; Cornwell v. Haight, 21 N. Y. 462; Stone v. Sprague, 20 Barb. 509; Clark v. Crandall, 27 Barb. 73, 3 Barb. 612.

This brings us to appellants’ further contention,—that, assuming what the defendants did amounted to a waiver of a formal tender, still it cannot avail plaintiff, unless he was in such a position that he could have made a tender of the bonds; that a tender imports, not only readiness and ability to perform, but actual production of the thing to be delivered, and, while the formal requisite of a tender may be waived, to establish a waiver there must exist capacity to perform. Eddy v. Davis, 116 N. Y. 247, 22 N. E. 362. If, in this case, the plaintiff had sold and delivered the bonds to a third party, so that performance on his part was no longer possible, he would be within the rule of Eddy’s Case. But he had not sold the bonds. Instead, he had, prior to the making of the contract, pledged them as collateral for a loan much less in amount than was due him on account of the purchase price at the time he offered to make tender. All that was needful for him to do, in order to obtain possession of the bonds for delivery to the defendants, was to pay the amount of the loan. Had the defendants been willing to, have paid the purchase price, as per their contract, and fixed a time and place for making payment, an arrangement could doubtless have been made to have had a representative of the bank produce the bonds for delivery to the defendants, upon receipt of so much of the purchase price as was due them. But,' assuming appellants’ position to be well taken,—that it was necessary that the plaintiff should have been in a position to make a formal tender of the bonds at the time of the waiver, without reference to the moneys due him from the defendants under the contract,—we are of the opinion that it cannot be held, as a matter of law, that he did not have capacity to perform. As we have observed, all that it was necessary for him to do, to get possession of the bonds, was to pay the sum for which they were pledged as collateral. If he was in a position to do that, or by any other method to obtain possession of the bonds, then he had capacity to perform, and defendants’ waiver was effectual. The affirmative of this proposition doubtless rested with the plaintiff, and he offered in support of it, so far as we have observed, only his own assertion of ability to obtain the bonds from the pledgees, and deliver them to the defendants. This was certainly some evidence of the fact,—enough at least to have authorized a jury to find that he had capacity to perform at the time the1 tender was waived. Appellants insist that the record contains evidence that he was largely indebted at the time of the alleged tender. More than that, they urge that from this evidence it should be found that he was insolvent. While the facts and circumstances brought out on the trial, if considered independently of plaintiff’s evidence, might have required a finding of inability to take up the loans, it must be borne in mind that they stand opposed by plaintiff’s testimony, and thus was presented a question of fact for the jury, not one of law for the court. The court therefore rightly refused to take that question from them.

It is said that the motion to direct a verdict presents the further point whether, in order to recover, the plaintiff was not bound to produce the bonds upon the trial for delivery to the defendants. If it does present that question, we think error wns committed. There was such evidence of waiver of tender, as we have already shown, as would authorize a finding of waiver. In considering the present questions, therefore, it must be assumed that tender was effectually waived. The tender having been waived, there was, of course, no tender to keep good, and the position taken in that respect is inaccurate. But while the plaintiff, because of the waiver, was not bound to prove the making of a formal tender, and that thereafter he had kept the tender good, we do think the defendants, upon the trial, had the right to insist that the plaintiff should produce $115,000 of the bonds in court as a condition precedent to recovery. Plaintiff’s testimony in relation to the $50,000 of bonds, if accepted, would have excused their nonproduction in court. He said that those bonds had been converted by a third party. We have not the details of the transaction, but, so far as the testimony goes, it is to the effect that they were wrongfully taken from the possession of the plaintiff. If that be true, it would follow that the plaintiff could not be denied the right of recovery because of his inability to produce them. Having offered to defendants a delivery of possession of the bonds, which they refused to accept, he could not be made answerable thereafter to the defendants for consequences resulting wholly from the acts of wrongdoers respecting them. But, as to the $115,000 of bonds which had been pledged by the plaintiff as collateral for loans, we think the defendants had the right to insist upon their production in court, to the end that they should come to the possession of the defendants in the event of a recovery by the plaintiff. The plaintiff was the last witness sworn on the trial, and he told when these bonds were pledged as collateral, and the amount of the loans, and asserted that they were ready for the defendants. We quote a portion of his testimony:

“I had them on several loans, and transferred them, but they were all ready at any time. W. E. D. Stokes has that $50,000 or $30,000 of bonds still. I think he has converted them. That is what I am charging him with,—conversion. Q. Then why do you say they are ready for me? A. I might have some difficulty with him, but I can make it all satisfactory to you.”

This statement the defendants, of course, could accept as affording to them sufficient protection in the event of recovery by the plaintiff. They were not bound to accept it, and could have demanded their production in court, or that a dismissal of the complaint should follow. Now we have read carefully the grounds upon which the defendants based their motion for a direction of a verdict in their favor, and we do not find anything in them which could have suggested, eiren to the court, that the defendants were relying upon the failure of the plaintiff to produce the bonds in court to secure the direction of a verdict in their favor. The propositions which the defendants’ counsel pressed upon the attention of the court as the grounds for granting their motion were that the plaintiff had never delivered the bonds to thé defendants, nor presented an excuse for nondelivery; that he had not made a formal tender of the bonds, nor had the tender been waived, and, if made, it had not been kept good as required by law. We quote the grounds upon which the defendants rested tlieir motion:

“First. That the plaintiff had not established the existence of the contract upon which the action was brought. Second. Upon the ground that there had been no delivery and no tender, and no sufficient evidence of a waiver of a tender, of the $115,000 of United Lines Telegraph bonds which were shown to have been pledged with the Chemical Bank; that those bonds, as appeared by the evidence, had, to a considerable amount, been subjected by the plaintiff to further and different liabilities, and by the plaintiff’s voluntary act passed from his control. Third. Upon the ground that there had been no delivery and no tender, and no excuse for nondelivery, of the bonds which had been, according to the testimony, in the Madison Square Bank. On the contrary, it appeared from the evidence that after the time it is alleged that the contract sued upon was made the plaintiff himself was borrowing money and creating a burden upon those bonds for the payment of his own obligations, and that if any tender had been, in point of fact, made or proposed, the same had not been kept good as required by law.”

The point not having been made in the motion for the direction of a verdict, or at any stage of the trial, when, perhaps, it might have been overcome by the payment of the loans and the production of the bonds, it cannot be made available for reversal in this court. If we are right in the views expressed, it follows that the court did not err in denying defendants’ request for a direction of a verdict in their favor.

The appellants urge that error was committed by the refusal of the court to receive in evidence a memorandum alleged to have been written by Ingersoll, the stakeholder, as a basis for a telegram to be sent to Mr. Mackay by his representative at the meeting of December 24, 1888, when the preliminary arrangements were being made which ripened into the contract found by the jury to have been entered into. There were present, as appears by the testimony of the witness Platt, himself, Col. Ingersoll, the defendant De Castro, and the plaintiff, Stokes. It was first offered and excluded after defendants’ counsel had examined the plaintiff in reference to it, with the following result:

“Q. (Paper handed witness.) Do you know the handwriting of the paper I now show you? A. Yes; it is signed by Ingersoll. It is his signature and writing. Q. Did you see that paper written? A. I did not; never saw it until to-day, that I remember. Q. Didn’t you see Mr. Ingersoll, at the time of that interview, write a paper, and hand it to Mr. Platt? A. I have no recollection of any such thing. Q. Did you say you did not? A. I can simply say I have got no recollection of it. Q. That is all you can say? A. That’s enough, isn’t it?”

The ruling of the court was proper, for, so far as it then appeared, it was a private communication between Col. Ingersoll and Mr. Platt, not brought to the attention of any of the parties to this action.

After the defendant De Castro had testified in relation to the circumstances under which the memorandum was written, it was again offered in evidence, and excluded by the court. De Castro testified as follows:

“I recall the circumstance of the meeting of the 24th of December, 1888, when Mr. Stokes and Mr. Ingersoll sat around this table in Mr. Stokes’ room In the Hoffman House. There was pen, ink, and paper on the table at that time. I have said that I had no discussion with Mr. Stokes as to what should be telegraphed to Mr. Mackay. Mr. Ingersoll said that he would prepare a telegram to Mr. Mackay, stating what had been done, and wrote it out then and there. The subject of what was to be telegraphed to Mr. Mackay was spoken of then and there. Mr. Ingersoll said he would telegraph to Mr. Mackay,—would prepare a telegram to Mr. Mackay. Mr. Ingersoll said he would prepare a telegram to be sent by Mr. Piatt and myself, and sat down and wrote it down then and there. He said he would say in the telegram that the securities had been turned over to him for custody, and that a certain agreement would be sent to Mr. Mackay for his signature, and he wrote a memorandum. (Paper marked ‘Exhibit No. 8,’ for identification, handed witness.) That is the paper which Mr. Ingersoll wrote. We were all sitting at the table, there, talking together, as it was written; and Mr. Ingersoll, I think, read it and talked as he was writing it I think the whole of what was in that telegram was spoken aloud at that time. The substance of the telegram was spoken in every part.”

It will be observed that the witness did not testify that Stokes read the memorandum, or that it was read in his presence. His strongest expression in that direction was, “I think the whole of the telegram was spoken aloud at that time.” But what was spoken did not make the memorandum evidence, so long as it did not purport to be either a reading of it, or a statement of its contents. What was said was undoubtedly, of itself, competent evidence, and that the witness was permitted to state. He gave his recollection of what was spoken aloud, and it differed materially from the memorandum; but, had it conformed to it, the effect would not have been to make the memorandum evidence, in the absence of evidence that, when spoken, it was stated to be the contents of the memorandum.

The memorandum was again excluded by the court after the defendant Mackay’s representative, Platt, had testified as follows:

‘‘Col. Ingersoll wrote out the text of what he said I was to communicate in a message to be sent to Mr. Mackay. Mr. Stokes was present. Q. Did he write out anything in the presence of these gentlemen? A Yes; he did. Q. (Paper handed witness.) I show you a paper marked ‘Exhibit 8,’ for identification, and ask you if that is the paper he then wrote? A. Yes, that is the paper. It was written in the upstairs room of the Hoffman House, at a table in the room. At the time it was written, there were at this table Mr. De Castro, Mr. Stokes, and I, and it was handed to me in Mr. Stokes’ presence.”

Platt’s evidence added nothing to the force of the evidence already given. He testified that it was written in the presence of Stokes, but neither he nor any other witness testified to the only fact which would make it competent evidence, in view of Stokes’ denial of knowledge of it, to wit,—that Stokes either read it, heard it read, or knew its contents.

Complaint is made because of the exclusion of certain testimony offered by the defendants touching the value of the poles, wires, and physical property generally, of the Bankers’ & Merchants’ Company in December, 1888, which went into the United Lines System. The theory upon which this evidence was offered was that, inasmuch as it is not pretended that the defendant Mackay, in terms, agreed to be bound by the proposed agreement sent him for consideration, but became chargeable, if at all, as a party, because of acts of ratification and adoption on his part, and as upon this subject there was a conflict of testimony, evidence touching the advantages and disadvantages which would result to the defendant Mackay under the contract would have a bearing on the probabilities of the case. The view which the trial court apparently took of the proposed evidence as to the value of poles and lines was that it could only result in misleading the jury, because it permitted the same witness to testify in relation to the revenues which came to the Postal Telegraph Company through the United Lines Telegraph Company. It seems to us that this view was the correct one, for the franchises of a corporation of this character constitute a very important element of value; and whether such a property, including both the franchises and physical property, has small or great value, depends upon its earning capacity. The true test is whether it has capacity to pay expenses and earn profits. But, if it be assumed that the evidence offered was competent upon the subject of value, we think the judgment should not be reversed for its exclusion, because it could not in any way have affected the result. The purpose of its offer was, as we have already observed, to enable the jury to infer from the comparatively small value of the property that Mackay’s assertion that he not only did not make the contract, but that he never intended to ratify or adopt it, was truthful. It can have no material bearing upon what took place prior to the telegram from Mackay to Platt, because it is conceded that at that time Mackay was entirely ignorant of the price that defendant De Castro had agreed should be paid for the property. As he knew nothing about the price, the question of the value of the property was necessarily not presented to him. It could have had no effect upon his action "in writing the letter of January 3, 1889, to Ingersoll, in which he instructed him to hold the bonds and stock then in his possession, which he had received from Stokes for Mackay, because he testified that at the time of such writing he had no intention of signing the contract, or paying the consideration mentioned in it. Necessarily, therefore, the value of the property had no bearing upon his actual intent. The •judgment necessarily proceeds upon the theory that as soon as Mackay discovered that by the terms of the contract he was to cancel the C. H. Bead Company note, and pay to the plaintiff $100,000, he never really intended to execute the contract, or adopt it; but that, notwithstanding his secret intent not to become a party to the contract, lie did in fact adopt it, by acts which led the plaintiff to think otherwise, and to act accordingly, resulting in the possession of the greater part of the securities mentioned in the contract coming to Mackay, who has ever since retained them. e In other words, while he did not intend to make the contract upon which plaintiff has recovered, he has been held to have intended, not that which he secretly intended, but which the other party to the contract had a right to assume, from his words and acts, was his real intent.

Many other exceptions have been pressed upon our attention, but we do not think they require a reversal of the judgment. The judgment should be affirmed, with costs. All concur.  