
    Melville D. Chapman, Appellant, v. Emily Fowler and Others, as Executors, etc., of Anderson Fowler, Deceased, Respondents.
    First Department,
    May 7, 1909.
    Sale —breach of contract to sell stocks — damages caused by delay in delivery — estoppel'. • \
    The f.u-11 price was paid for stock which was to be delivered ait a-fixed future day; the stock was not transferred, and upon demand with notice that the purchaser desired delivery, the defendant failed to cause a transfer to he made and failed to deliver the stock until nearly a month thereafter, the value of the stock having depreciated in the meantime.-
    
      
      Held, that it was error to dismiss the complaint as there was prooí of a valid contract founded upon, a consideration, a breach upon demand and resulting damages with notice to the defendant that a failure to deliver would cause damage;
    That the subsequent acceptance of the stock did not operate as an estoppel and the purchaser was entitled to the damages caused by the delay in delivery.
    Appeal by the plaintiff, Melville D. Chapman, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the Yth day of July, 1908, upon the dismissal of the complaint by direction of the court, at the close of the plaintiff’s case, on a trial at the New York Trial Term.
    
      Burt D. Whedon of counsel [ Wing, Russell & Watterson, attorneys], for the appellant.
    
      Henry B. Twombly of counsel [Louis H. Hall with him on the brief], Richard B. Kelly, attorney, for the respondents.
   ■Clarke, J.:

The complaint alleged that on of about November 25, 1905, the plaintiff and Anderson Fowler, deceased, entered into an agreement that the said Fowler should forthwith sell to the plaintiff 1,000 shares of the common capital stock of the Greene Gold-Silver Company, for which the plaintiff was to pay $2,250, the said stock to be transferred on the books of the company and delivered to the plaintiff by the said Fowler on March 15, 1906; that on November 25, 1905, plaintiff .paid to said Fowler said sum of $2,250 in full of the purchase price; that thereafter on February 9, 1906, said Fowler died, leaving a last will and testament whereby the defendants were appointed executors, which was duly probated on March 13,1906, and on said date letters testamentary were duly issued to the defendants, who duly qualified; that in violation of said agreement the said stock was not transferred on the books of the company on March 15, 1906, nor was the same transferred until some time thereafter, at which time the said stock had materially depreciated in value, to the damage of the plaintiff; that the plaintiff on March 15, 1906, duly demanded the delivery of said 1,000 shares of stock, but the same was refused.

Upon the trial the plaintiff testified that oil the fifteenth of March he asked one of the executors for the delivery of 1,000 shares under his father’s contract. “ He told me that the affairs of his father’s estate were, in such shape that he could not make a delivery on that day, and he did not know when it could he made. I said 4 the stock is declining and I wanit'to make a sale and, get out of it and realize on niy transaction.’ ‘ Well,’ he said, ‘ I cannot help you out.. * * * You will have to wait until we can clean up a lot of affairs and until we get to it.’ ” It was, proved that delivery was made on the twelfth of April; that plaintiff made no objection to receiving the stock when it was delivered., It was proved that the stock was transferred on the books of the company on April 10, 1906, and that the difference between the highest price ¡of 1,000 shares of the stock, on March 15, 1906, and the lowest price on April 10,, 1906, was. $1,500.

,• At the close of the plaintiff’s case defendants moved' to dismiss the complaint, and the learned court said: “It seems.to me that having received the stock without protest and without, objection, and having retained "it ever since, it is not a waiver but becomes an' estoppel. T will grant the motion to dismiss the complaint.”

The plaintiff paid full price for the stock to be transferred upon the books of the company and delivered to him upon a fixed future day. There was-a breach of said contract in that upon said ¡day the stock' was not transferred to his name upon the books of the com.pany, and upon demand with notice that he desired delivery because the stock was declining and he wanted to make, a sale and" realize bn the transaction, defendants failed to cause the transfer to be made and failed' to deliver until nearly a month thereafter, the value of the stock having very considerably depreciated in' the meanwhile. It would seem that the plaintiff had established the essential ingredients of a cause of action, a valid contract upon sufficient consideration, a breach upon demand, and resulting damage, with notice to the defendants of the condition of the market and that a failure to deliver would cause damage. ¡

We are unable to perceive in what way the' subsequent acceptance of- the stock operated as an estoppel. The plaintiff had the absolute fight to the stock; he had paid for it in fall; it belonged to him. It was to be delivered upon a’ day certain. < If not delivered, he would have been entitled to the full value thereof by way of damages.

In Ripley v. Ætna Ins. Co. (30 N. Y. 136) the court said: It seems to me that a waiver to be operative must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on performance of the contract or forfeiture of the condition.” In Stenton v. Jerome (54 N. Y. 480) the court said: “ It is a principle as old as the common law that a cause of action once vested can only be discharged by a release under seal, or the receipt of something in satisfaction,” citing McKnight v. Dunlop (5 N. Y. 537).

In New York Rubber Co. v. Rothery (107 N. Y. 310) Judge Peokham defines an estoppel as follows: “ To constitute it the person sought to be estopped must do some act or make some admission with an intention of influencing the conduct of another, or that he had reason to believe would influence his conduct, and which act or admission is inconsistent with the claim he proposes now to make. The other party, too, must have acted upon the strength of such admission or conduct.” And in Clark v. West (193 N. Y. 349) the court said: “We assume that no waiver could be implied from the defendant’s mere acceptance of the books and his payment of the sum of $2 per page without objection. It was the defendant’s duty to pay that amount in any event after acceptance of the work. The plaintiff must stand upon his allegation of an express waiver, and if he fails to establish that- he cannot maintain his action. * * * A waiver has been defined tó be the intentional relinquishment of a known right. It is voluntary and implies an election to dispense with something of value, or forego some advantage which the party waiving it might at its option have demanded or insisted upon. * * * ‘The law of waiver seems to be a technical doctrine introduced and applied by the court for the purpose of defeating forfeitures.’ * * * 1 The doctrine of equitable estoppel or estoppel in pais is that a party may be precluded by his acts and conduct from asserting a right to the deti’iment of another party who, entitled to rely on such conduct, has acted upon it.’ ”

There is no pretense in the case at bar that the- defendants had any rights which were lost or affected to their detriment by the act of the plaintiff in accepting the stock which clearly belonged to him, or that they were induced to make said delivery by any promises or representations of his.

He merely received his own property when defendants got ready to perform their father’s contract. The damages which he might otherwise have recovered, based upon their refusal to deliver, were mitigated but not wiped out. He had a right of action for damages for breach of contract. He did not waive that right; and he did nothing to estop himself from asserting that right.

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.

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