
    PHELAN et al. v. JONES.
    (Supreme Court, Appellate Term.
    January 7, 1909.)
    Corporations (§ 121)—Stock—Contract for Sale—Breach.
    One cannot recover for breach of a contract to deliver corporate stock without proving an offer to perform on his part, or that he was able and willing to perform.
    [Ed. Note.—For other cases, see Corporations, Cent. Dig. § 1157; Dec. Dig. § 1211.]
    Appeal from Municipal Court, Borough of Manhattan; Fourth District. ,
    Action by John E. Phelan and another against Fred R. Jones. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.
    Argued before GIEGERICH, HENDRICK, and FORD, JJ.
    Charles R. Bradbury, for appellant.
    Horace E. Parker, for respondents.
    
      
      For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

The action is to recover damages for the breach of a contract for the sale and delivery of certain stock of a mining corporation; the alleged breach consisting of the defendant’s failure to deliver. Without passing on the other questions raised by the briefs, it seems sufficient to say that our attention has not been called to any evidence tending to show that the plaintiffs offered to perform on their part, or even that' they were able and willing to perform, and we have not ourselves been able to find any such testimony in the record.

The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.  