
    WHITE against SCHUYLER.
    
      Supreme Court, Third District ;
    
    
      General Term, September, 1865.
    Specific Performance.
    Specific performance of an agreement to transfer stock, may be decreed, where the contract to convey is clear, and the uncertain value of the stock renders it difficult to do justice by an award of damages.
    Appeal from a judgment in favor of the plaintiff, rendered under the direction of Mr. Justice Miller, on a trial before him, without a jury, at the Albany Circuit, in May, 1864.
    
      The action was brought by John S. White against Thomas Schuyler, to compel the defendant to transfer to the plaintiff one hundred and eighty-two shares of the capital stock of “ Schuyler’s Line Steam Tow Boat Association,” and to pay him certain dividends received thereon, which the defendant claimed to hold as his own property, by virtue of a contract dated June 2d, 1862. The judgment was for a specific performance of this contract. No costs of the action were given to either party as against the other.
    The leading features of the case, as found by the justice who tried the cause, were as follows :
    Prior to the 2d of June, 1862, the plaintiff was the owner of one hundred and eighty-two shares of the capital stock of <f Schuyler Line Steam Tow Boat Association,” of the par value of eighteen thousand two hundred dollars, for which a certificate had been duly issued, and on the 2d of June, in consideration of fifteen thousand dollars paid by the defendant on account of the plaintiff, the stock was delivered to the defendant, and thereupon he gave the plaintiff an agreement in writing, to the effect that Schuyler would, on the 1st day of February,¡*1863, upon payment White to him of sixteen thousand five hundred dollars, and indemnifying him against any loss on account of having endorsed his paper, sell and convey to White, the one hundred and eighty-two shares of stock in question, with any dividend which it should earn in the year 1862 ; and if, at that-time, the value of the stock was more than sixteen thousand five hundred dollars, the excess in value should be paid to Mr. H. Read, receiver of the Bank of the Capital, on the indebtedness of White to said receiver, if the said indebtedness should not sooner be paid. That on the 10th of February, 1863, the defendant received nine thousand one hundred dollars for a dividend on said stock, and on the 10th of February, 1864, ’a further dividend of five thousand four hundred and sixty dollars.
    That on the part of the defendant there was a waiver of strict performance by the plaintiff on the day named, and the time was extended, and within the extended time the plaintiff tendered the defendant sixteen thousand five hundred dollars, and demanded the stock and dividends, and the defendant refused to transfer the stock, or pay over the dividends.
    That the defendant had not sustained any loss by reason of endorsing the plaintiff’s paper, and was not under any liability on th&t account, and the indebtedness of the plaintiff to the receiver of the Bank of the Capital had been fully paid and discharged.
    "Upon these facts found, a judgment was directed, that upon payment of sixteen thousand five hundred dollars, with interest from February 1st, 1863, deducting the dividends received by the defendant, the defendant transfer the stock to the plaintiff, with all dividends and accumulations. since the 10th of February, 1864.
    The testimony was, in some respects, conflicting, especially in regard to the extension of the time for performance, and to ’ what period such extension was made.
    
      John R. Reynolds, for the plaintiff, respondent.
    
      Ira Shafer, for defendant, appellant.
   By the Court.—Hogeboom, J.

No other objections to the enforcement of the specific performance of this contract are made, than the want of mutuality, and the failure on the pai;t of the plaintiff to perform offer to perform, within* the stipulated time. Sections 729, 736 of Story’s Equity Jurisprudence, vol. 2,^ are cited in support of the proposition as to want of mutuality, but I do not see that they are directly applicable. On the contrary, the same author, at section 736, a. states as follows,—“But it is not necessary to the specific performance of a written agreement that it should be signed by the party seeking to enforce it; if the agreement is certain, fair and just, in all its parts, and signed by the party sought to be charged, that is sufficient; the want of mutuality is no objection to its enforcements The following authorities are cited in support of this doctrine. Woodward v. Aspinwall, 3 Sandf. Ch., 292; In re Hunter, 1 Edw. Ch., 1; McCrea v. Purmort, 16 Wend., 460 ; Clason v. Bailey, 14 Johns., 484.

It is not objected that the contract relates to a class of property, in regard#to which it is not usual to, direct a specific performance, upon the ground that the party has an adequate remedy at law in damages. But if such objection had been taken, I think it ought not to have been sustained. 1. Because the parties evidently contemplated, and specially contracted for a re-conveyance of the stock. 2. Because, as well on account of the uncertain value of the stock in market, and the infrequent sales of it, as the varying character .and success of the Business which the stock represented, it was difficult, if not impossible, to do justice between the parties in an award of damages. These are controlling reasons in equity for a specific performance (Philips v. Berger, 2 Barb., 609; 2 Story’s Eq., Tit. Specific Performance, §§ 716-718; 6 Johns. Ch., 222; Seymour v. Delancy, 3 Cow., 445).

The other objection to a specific performance, to wit: the omission to perform within the time to which the right of performance was extended by the stipulation or understanding, and conduct of the parties,—involves a question of fact. The judge at the special term before whom the cause was tried, has examined that question with care, has evidently given it much attention, and, notwithstanding the criticisms of the learned counsel for the appellant, was, I think, warranted in his conclusions upon a view of the testimony, which, on scrutinizing the witnesses, he was permitted to take.

I do not deem it necessary to review the facts, nor to restate the conclusions, which the testimony justifies. I am, myself, of opinion that upon the plaintiff’s version, of the conduct and understanding of the parties, the contract was fairly open for performance up to the 28th of February, and that the unequivocal refusal of the defendant to perform on that day, either rendered an absolute tender and offer to perform before suit brought unnecessary, or made the tender on the 16th of March as preliminary to the institution of a suit for specific performance in season, especially as the court below did not charge the defendant with costs.

I am, therefore, of opinion, if we are to put the same interpretation upon the character of the contract that the judge did at the trial of the cause, that the judgment should be affirmed with the costs of appeal.

This makes it unnecessary to examine the other question made in the case, to wit: whether the whole transaction was not in the like nature of a security for the loan of money.

If that question be open for examination here, and doubt in regard to the other aspect of the case made it expedient for the plaintiff to prevent it, I should be loth to enter upon the ex-animation after an adverse conclusion by the court below, and a decision in favor of the plaintiff on other grounds, and, in general, should think it better to remand the case for the purpose of re-examination, and the presentation of a distinct exception or review on that point by the party aggrieved.

I am for affirming the judgment of the court below with costs. 
      
       Present-, Hogeboom, Miller and Ingalls, JJ,
     