
    Harris B. Goldman, Respondent, v. Frank G. Swartwout, Appellant.
    First Department,
    January 25, 1907.
    Trial — tender by defendant with payment into court — when judgment for amount of tender with costs not authorized — appeal — reversal after submission of case on erroneous theory.
    When before action brought to recover the value of stock alleged to have been intrusted to defendant for sale, the defendant tenders the proceeds of the sale and on the refusal of the tender deposits the sum in court, the defendant is entitled to a verdict if the plaintiff fails to establish a right to more than the sum tendered.
    When the plaintiff fails to recover more than the tender, he is not entitled to costs.
    Under such circumstances the defendant is entitled to' prove the tender and deposit as a defense of payment, and when the court rejects such evidence and charges that the jury is to render a verdict for the amount of the tender if that be found to be the amount the defendant received for the stock, or a verdict for a larger amount if a larger amount were received, the case is submitted upon an erroneous theory, and a verdict for the amount of the tender with costs will be reversed, although the defendant took no exception to the charge. The error is available under an exception to the denial of a motion for a new trial on the ground that the verdict was contrary to law.
    Appeal by the defendant, Frank G. Swartwout, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 25th day of April, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s- office on the 27th day of April, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      James O. Bushby, for the appellant.
    
      Nathan D. Stern, for the respondent.
   Lambert, J.:

The defendant in this action appears to have been intrusted with certain shares of the stock of the Scarsdale Water Company;' with authority to sell the same for the plaintiff and his wife, at a price not less than fifty dollars per share. The cause of action, originally pleaded involved eight shares, but it subsequently appearing that seven of these shares belonged to the plaintiff’s wife, the action was continued only as to the single share owned by the plaintiff. The' defendant sold this share of stock, with others, and the plaintiff brings this action to recover one hundred dollars, the par value of the stock. The defendant claimed to have sold the stock for fifty dollars, the minimum figure authorized, and it is not disputed that he tendered to the plaintiff fifty-one dollars in cash, this being the -purchase price with interest added, the defendant having been prevented by an injunction from paying over the same. This tender was refused. These facts were set out in the answér, and it was alleged that this amount had been paid into court, and remained there subject to the plaintiff’s acceptance. Upon the trial the defendant offered evidence tending to prove the payment of the fifty-one dollars into court, but on the plaintiff objecting that such evidence was “ incompetent, irrelevant and immaterial,” the court, without ruling otherwise,, said: “ It is not necessary. All this jury will have to pass upon is the amount the stock sold for.” In its charge the court submitted this single question, whether the defendant sold the stock for fifty dollars, as he claimed, or whether he had received, seventy-five dollars, as the plaintiff alleged the defendant had stated to him, and the court said :. “If it is $75 then you are to render a verdict for $89.40, being the amount with interest; but if it was $50, then because of the tender made in this case, which stops the running of interest, you are to render a verdict for.$50.”

The defendant’s counsel moved for a new trial, on the grounds that the verdict •“ is poyfrary to the evidence,' -contrary to the weight of evidence and contrary to law,”, without making any objection or exception to the charge of the court in submitting the question. The result is that the defendant, who has, under the verdict, discharged all of the duties and obligations which he owes to the plain-' tiff, is confronted with a judgment for costs in the sum of $137.82, a manifest injustice, which it is the duty of this court to prevent.

This is not the case of a tender after the bringing of the action, as provided for by sections 731 to 734 inclusive of the Code of Civil Procedure; it is a common-law tender. The defendant, before any action was brought, tendered the plaintiff the amount which he had received for the stock, together with interest, and this tender was rejected. These facts were pleaded and sought to be proved upon the trial; and the answer further alleged that the money had been paid into court. When the defendant offered evidencé in support of this proposition, the plaintiff raised objections to the proof. The court suggested that it was unnecessary, evidently intending to take judicial notice of the fact of the deposit, as he did in his charge to the jury; and for this he had some warrant. (17 Am. & Eng. Ency. of Law [2d ed.], 926; 16 Cyc. 916.)

Under this situation of affairs the defendant was entitled to the benefit of his defense of a tender in liquidation or payment of the debt in suit.' In contemplation of law the defendant had relinquished all claim to the fifty-one dollars; that belonged of right to the plaintiff. It had been offered to him, and the offer had been kept good by the defendant surrendering the fund to the court in behalf of the plaintiff; and as the latter failed to establish a right to more than the sum which the defendant conceded to be due the defendant was entitled to a verdict. Under the circumstances of this case he had a right to assume that the verdict of the jury sustaining his contention would be in his favor; and his failure to take exception to the direction of the court to find a verdict for fifty dollars, if they found with the defendant’s contention, ought not to be permitted to deprive him of his rights. The plaintiff acquiesced in the charge, which assumed the deposit; and the injustice to the defendant is due merely to the error of the court in excluding all consideration of the tender. The defendant had paid to the plaintiff, in Contemplation of law, all that was due him. (Becker v. Boon, 61 N. Y. 317, 322; Wilson v. Doran, 110 id. 101, 106, 107, and authorities there cited.) If the money was in- the hands of the eourt (and this was.assumed- by the court and acquiesced in by the plaintiff), it belonged to the plaintiff, and the defendant could not take it away from -him, no matter what the result of the- trial. The defendant, therefore, owed to the plaintiff nothing, and yet by the judgment entered upon the verdict he is charged with costs far in excess of the amount claimed; he is punished, while having discharged every duty which he owed to the plaintiff..

The verdict is, in form, contrary to law, and the judgment based upon that verdict cannot stand without working such a wrong that it woiild be a shock to our sense of justice. The case was submitted to the jury upon an erroneous theory, and in such a case we are not limited by the fact that the defendant failed to take an exception to the charge (Leach v. Williams, 12 App. Div. 173, 175; Vorce v. Oppenheim, 37 id. 69); it is enough that he moved for a new trial upon the ground that the verdict was contrary to law, and excepted to the denial of that motion.

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

Pattebson, P. J., Ingraham, McLaughlin ■ and Houghton, JJ., concurred. ,

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