
    William F. Spencer, Respondent, v. James D. Hardin, Appellant.
    First Department,
    March 22, 1912.
    
    Appeal from order denying new trial — absence of exceptions — weight of evidence — theory of trial — sale — failure to demand delivery — damage—value of stock — erroneous charge.
    On an appeal from an order denying a motion for a new trial the Appellate Division may, notwithstanding absence of exceptions, consider the weight of evidence and the question as to whether the case was tried upon a wrong theory.
    Where.a contract to sell shares of stock named no time for delivery, a demand is necessary in order to put the seller in default.
    Where no demand for delivery was made before the stock became valueless through the failure of the corporation, it is error to charge in substance that if the contract was made and there was no delivery the buyer is entitled to recover the price of the stock at the time of the contract.
    Moreover, where the stock was not listed on an exchange and there was no open market therefor the amount of damages for the breach of contract of sale is for the jury.
    Appeal by the defendant, James D. Hardin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of April, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of April, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      George H. Fletcher, for the appellant.
    
      Joseph M. Baum, for the respondent.
   Scott, J.:

The action is brought to recover damages for the failure of defendant to deliver to plaintiff 100,000 shares of the capital stock of the Branch Mint Mining and Milling Company, which, as plaintiff alleges, he purchased in May, 1905. The agreement for sale is said to have been an oral one, as to which plaintiff and defendant alone are able to testify directly. The former alleges that the sale was made, the latter denies it. It is not claimed that the enterprise was a fraudulent one, but it Ultimately proved to be a failure. The company had issued an enormous amount of stock, mainly or wholly to defendant, who was engaged in and about the year 1905 in selling it, partly through the efforts of plaintiff, who was compensated for his services. The price at which the stock was offered to optimistic investors was fifteen cents per share, and apparently a considerable amount was sold by defendant at that figure, although, on occasion, he was able to buy back shares at a much smaller price. The stock was not listed on any exchange, and there was no open market for it.

There is a notable lack of exceptions in the record, but on the appeal from the order denying the motion for a new trial we are authorized to consider the weight of the evidence and the question whether or not the case was tried upon a wrong theory. (Goldman v. Swartwout, 117 App. Div. 185, 188 )

Whether or not any contract was ever made rests upon the testimony of the interested parties and so far the evidence may be said to be equally balanced. From the time the sale is said to have been made until after the failure of the enterprise, had been demonstrated plaintiff and defendant apparently remained on terms of intimacy and engaged in frequent correspondence relating to the affairs of the company. It is very significant that in all this correspondence no reference is made to any sale of stock to plaintiff or any claim he had to a delivery of shares upon such sale.

If, however, plaintiff’s version of the sale be accepted as true no time was agreed upon within which the stock was to he delivered, and in order to put defendant in default a demand was necessary. Plaintiff attempted to prove such a demand in July, 1905, but it is evident that if any demand was then made it was waived, and not persisted in. A formal demand, and the only one clearly proven, was made in 1908 after the enterprise had failed and the stock doubtless had become valueless.

The court did not leave the question of damages to the jury, hut charged that if it was found that the contract of sale had been made (non-delivery being admitted) plaintiff was entitled to recover the value of the stock estimated at fifteen cents per share. This was doubtless upon the theory that if the stock had been delivered when, or shortly after, the sale had been made the plaintiff would have been able to sell it at the price named. If, however, as we consider, defendant was not in default until the formal demand was made upon him in 1908, the verdict rendered under this charge was much too large, and in any event, since there was never an open market for the stock, the question of the amount of damages was for the jury.

We are, therefore, of the opinion that the verdict was arrived at by the application of an erroneous rule of damages, and that the judgment cannot be sustained upon the evidence. It will, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  