
    
      C. T. Mitchell vs. The Georgia Railroad and Banking Company.
    
    Case for not delivering stock alleged to have been bargained and sold by defendant to plaintiff: .Evidence considered, and non-suit on circuit because the evidence was insufficient to show a contract with defendant for the sale of the stock, sustained.
    Where, in a contract for the sale of bank stock, no time is fixed for the payment, the transfer of tho stock and the payment of the purchase money are concurrent acts, to be done at the same time, and the purchaser cannot recover damages for the vendor’s refusal to • transfer, alleging the same to be a broach of the contract, without alleging and proving payment, or tender of payment.
    
      Before Withers, J., at Charleston, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    “ This action was on the case, by attachment, and claimed from the defendant, as a corporation, damages for certain stock, with arrears of dividends, alleged to have been bargained and sold by the said corporation, and not delivered. According to the testimony adduced by the plaintiff, it appeared, that Wm. Dearing was a large stockholder in the corporation, and had been its president prior to his removal to Charleston. After that event, he had negotiated several sales of stock for the corporation, while John P. King was president, under advice and instruction of J. W. Wilde, cashier. That on the 7th June, 1845, Wilde, cashier, dating ‘ Geo. Railroad and Banking Company, Augusta,’ addressed Wm. Dealing & Sons, Charleston, as follows :• — £ Charles G. McKinley has consented to sell his 44 shares of stock at $70 per share, and appropriate the proceeds to the payment, as far as it will go, of the old debt due the Bank. 1 have his power to transfer his stock to Judge King, who is au-thorised to sell it for the foregoing purpose; and the Judge desires me to say to you that you shall have the preference, if you wish the stock at $70.’ No answer to this letter from the house ■of Dealing was produced ; but on the 12th June, 1845, Wilde, cashier, addressed‘Wm. Dealing,’ as follows: — ‘I found on calling upon Judge King, upon receipt of your favor of the 9th jnst., that Mr. McKinley had not furnished him with the scrip for the 44 shares bargained to Mr. Charles T. Mitchell, through you. He has written for it, however, and as soon as it is received, the transfer shall he consummated.’ A copy letter, signed Wm. Dearing & Sons, under date 23d August, 1845, addressed "to J. P. King, was introduced and proved, in which the following language occurs1‘ We bought from J. W. Wilde, Esq., Cashier, the stock of Charles G. McKinley, for Mr. Charles T. Mitchell, tie is very desirous . of having his certificate, and paying the money. Judge Wilde promised to have it early attended to. We do consider it a positive sale. Mr. Mitchell insists on the consummation. That money, like the amount from Cobb, is due the Georgia Railroad and Banking Company. Please refer to J. W. Wilde’s letter, dated 7"th June, and our answer on the 9th inst., saying that we would take it for Charles T. Mitchell, Esq. Please have the contract consummated at as early a day as practicable.’ On the 25th August, 1845, Judge King replied:
    
      ‘ I received yours of the 23d this morning, in relation to the transfer of the stock of Col. Cobb. You overlooked one thing in your instructions. Before a scrip can issue, there must, of course, be a transfer on the books, and the old scrip surrendered. In this case, I would have taken the responsibility of dispensing with the old scrip until you could conveniently produce it. But without a transfer, of course nothing can be done. Your Mr. Dearing will probably pass through here before this reaches you, and as agent can transfer the stock, and we can draw on him and send the scrip at the same time.’ . . ‘I supposed the contract with Judge Wilde was cancelled when it was ascertained there Avas difficulty in transferring without a foreclosure and public sale. But I have written McKinley that you expect the stock, and he must manage some way to perfect the sale. I presume the assignees would give up the scrip, and consent to' the sale, if applied to, as they could gain nothing by refusal.’’ The defendant objected to evidence as to plaintiff’s dealings with Dearing & Sons, on the ground that there was no proof showing: the agency of that house so as to bind the defendant. I received such evidence, however, thinking that question would have: to go to the jury. It was in evidence that Dearing & Sons were in frequent correspondence with some one or more officers representing the corporation, and enquiries were made of Dearing && Sons about exchange, &c.; that Mitchell frequently applied to Dearing for a confirmation of the sale of the stock in question; that he lent money to Dearing from time to time; that Dearing sold stock for defendant at different times, which the witness supposed belonged to the corporation; that Wilde, the cashier, to whom it was credited, would usually draw for the proceeds at three days. The witness said he knew of no authority to Dearing, except from Wilde, cashier, nor ever saw any general instructions from any one to him.
    “ It was further in evidence, that the stock of the defendant had risen in value very considerably, between 1845 and the time when this action was instituted ; and that various dividends had been declared and paid, the particulars whereof were stated by witnesses. -
    “ The plaintiff also placed in evidence the charter of the corporation, which was constituted of various Acts of the Legislature of Georgia. It will doubtless be produced and referred to in the argument on appeal. I refer at present to so much of it only as may serve to explain the nature of the decision I made, and the general foundation of it.
    
      “ In the 31st section of the copy I have, it is declared, ‘ that the bills obligatory and of credit, notes, and other contracts whatsoever, in behalf of the corporation, shall be binding and obligatory on the said corporation: Provided, the same be signed by the president, and countersigned by the cashier ; and the funds of the corporation shall, in no case, be held liable for any contract or engagement whatsoever, unless the same shall be so signed and countersigned, except for such checks or bills of exchange, <fcc.’
    
      “ Sec. 46. ' That no stockholder of the Georgia Railroad and Banking Company, indebted to the Bank, shall transfer his or her stock, except to the said company, until all debts due to the Bank by such stockholders shall be paid, unless by consent of the directors, entered upon the minutes.’
    “ Sec. 50. ‘ That said company shall have a lien upon the stock of any of its stockholders for any debt due by him, her or them, or for which he, she or they may be liable to the company.
    “ There is also an Act of 1843, not in the printed pamphlet handed to me, which provides that the company shall be authorized to purchase and receive their own stock in payment of debts. That when a stockholder is in default, the cashier is authorized to make affidavit of the indebtedness, whereupon execution is to issue, as in case of the foreclosure of mortgages of personal property, and a sale to be made by the sheriffs ; the proceedings are to be in all respects, as in cases of foreclosure of such mortgages — vide Prince’s Dig. 210.
    “ I believe those proceedings are substantially as follows :— The mortgagee is to make affidavit to a Judge of the amount of the debt for which the mortgage stands as a security, which affidavit is to be annexed to the mortgage ; whereupon the Clerk of the Court shall issue execution as upon a judgment, and the sheriff, under that execution, is to levy upon, and after advertisement, sell the property, and pay any surplus over the sum due on the mortgage, with costs, to the mortgagor.
    
      “ Upon this case, made for the plaintiff, the defendant submitted a motion for non-suit, upon the grounds :
    
      “ 1. That no tender of the money had been proved to hai^g, been made by Mitchell for the stock, or by Dealing in his behalf ; and where acts are to be done at the same time, he who sues must show a performance, or an equivalent offer to perform on his part.
    
      “ 2. That allowing Dealing to have been an agent of the corporation for some purposes, yet that no contract had been made by or through him with the corporation, in behalf of Mitchell; that Wilde neither acted nor professed to act as the agent of the corporation, nor could do so in the mode contemplated for the sale of the stock in question ; on the contrary, he undertook to negotiate a sale of McKinley’s stock, for McKinley, having in view, to be sure, the convenience of the Bank in receiving the proceeds, when McKinley should ratify the sale, which he alone, or his assignees, could do, in the form of transfer and sale in contemplation ; that the corporation, as such, could sell stock, or cause it to be sold, only in the specific mode directed by Act of 1843, that is to say, after the manner of foreclosing a mortgage on personalty; that this was the public, legislative power of attorney to any or all the officers of the corporation, imperative, exclusive and strictly limited, known, or presumed to be, to Mitchell and all the world dealing with the corporation; that the correspondence, put in evidence, showed that McKinley had incurred bankruptcy, and could not transfer his stock; that Wilde and King were acting, so far as they did act, for him and in his name; that they expressly set him forth as the owner of the stock, and therefore it could not be supposed that the same belonged to the corporation. If, therefore, any action whatever could be maintained, it was not against the corporation.
    
    “ Although the motion was stoutly contested for the plaintiff, my judgment was in favor of the motion, mainly on the considerations sustaining the second ground. It appeared to me that the 44 shares of McKinley’s were plainly not the property of the corporation, nor were held out as such by the corporation, or by any one authorized so to do for it; that Wilde, or he and King, were in fact and in law but negotiators for the sale of JffcKinley’s stock, and that the corporation could not, nor could any or all its officers, sell his stock in the mode adopted in this case, and this by the terms of its charter, the legal and restraining guide of it, its officers, and any who dealt with either in this respect.
    “ It is proper to add, that though I granted the motion for non-suit, it was not done without reluctance and misgiving.”
    The plaintiff appealed, and now moved this Court to set aside ■the non-suit, on the grounds
    1. Because his Honor erred in holding that the Bank could ’not sell the stock, except in the manner prescribed by their charter for foreclosing against stockholders indebted to them, whereas it is submitted that the Bank having a lien on the stock, and having the consent of McKinley to séll, could make sale of the same without the intervention of any legal proceedings.
    2. Because the Bank, through their authorized agents, did make sale of the stock to C. T. Mitchell'; and the proofs in relation thereto should have been submitted to the jury.
    
      Porter, McCrady, for the motion.
    The mortgage, or lien, of the Bank was upon the stock. That gave the Bank power to sell, in any way, with the consent of the mortgagor. The mortgagor did give his consent; and' the only question is, Did the plaintiff furnish sufficient evidence, to enable him to get before the jury, on the questions, whether Dealing was the agent of the Bank to sell, and whether he did sell to the plaintiff? Cited and commented on Wilde vs. Bank, 3 Mason, 506; Story on Agency, § 114 ; Fleckner vs. U 8. Bank, 8 Wheat. 357, 360; Bank vs. Patterson, 7 Cranch, 299. The cashier is the executive officer of the Bank and may transfer securities. But it is said, that, under the provisions of the charter, the president must concur with the cashier. If that be so, then the evidence shows that he did concur. The letter of the president and the letters of the cashier show a signing and countersigning sufficient to satisfy ihe terms of the charter. Then, as to tender of the purchase money. None was necessaryMiller vs. Hilliard & Wade, Chev. 151, note. Breithaupt vs. Thurmond, 3 Rich. 221. Where the action is case, the rule is not the same as in assumpsit. But if proof of tender be necessary, the letters furnish evidence of it which should be sent to the jury.
    
      Petigru, contra.
    The whole case turns upon the letter of Wilde to Dealing of June 7, 1845. The question is, whether Wilde acted as the agent of the'Bank, or as the agent of McKinley. Cited and commented on Combe’s case, 9 Co. 76 b; Wilks vs. Back, 2 East, 142; Li verm. 105; Welsh vs. Parish, 1 Hill, 155 ; Fash vs. Ross, 2 Hill, 294; Taylor vs. McLean, 1 McM. 352; Robertson vs. Pope,T Rich. 501; Story on Agency, 143. Wilde did not bind himself personally. He was acting as agent for some person; and the context. of the letter shows that he
    
      was acting as agent of McKinley. But he signed his name “ Cashier.” This surely cannot change the sense of what he had written. Wilde was not, and could not, by himself, act as agent of the Bank ; Prince Dig. 311,358, 424; Story on Agency, § 115; Dixon vs. Hasleit, 3 Brev. 475; S. C. 2 Tread. 615. Then as to the payment or offer to perform. Plaintiff has alleged an offer to perform, but he has not proved it, and without such proof he cannot recover; Kingston vs. Preston, Doug. 691; 2 Phil. Ev. 63, note; Colonel vs. Briggs, Salk. 113; Morton vs. Lamb, 7 T. R. 121; Miller vs. Hilliard & Wade, Chev. 151.
   The opinion of the Court was delivered by

Glover, J.

A consideration of the grounds, on which the motion for a non-suit was made in the Circuit Court, will necessarily embrace the grounds of appeal.

The motion was granted mainly on the ground, that the testimony to prove a contract, for the sale of stock, with the plaintiff by the defendant through Wilde, King, or Dearing, was not sufficient to require the intervention of a jury.

On the plaintiff rests the onus of proving the contract which he has alleged, and of showing “ that he is in a condition to maintain his action.”

Wilde’s letter, dated June 7,1845, addressed to William Dearing & Sons, opens the correspondence respecting the contract, and explains, in its inception, the terms of their agreement and the relations of the parties. A plain interpretation of the language shows, that Wilde was the agent of McKinley and not of the corporation. His authority is expressly referred to the power, by which McKinley had constituted him a special agent, to transfer the stock to King, who controlled the sale.

That Wilde corresponded in his official character, or that King, the president of the corporation, was authorized to sell, cannot fasten on the defendant the liabilities of a principal, contrary to the explicit language of the letter.

By the general usage, practice and course of business of Banks, their whole moneyed transactions are conducted through the cashier as an executive officer : and it is argued, that these powers are large enough to meet this case., But the answer is, that his agency was derived from, and delegated by, McKinley; and that there is no testimony showing any act of the corporation directing a transfer and sale of this stock ; nor can the adoption or recognition of the acts of Wilde, King, or Dearing, be inferred or implied from the official signature of the cashier, and the other circumstances relied upon, which are too slight and inferential to weigh against the plain meaning of the letter.

Although a consent made known through its common seal is not indispensable to bind corporations, and they may be bound in any mode pointed out by the charter ; yet the evidence of consent must be produced. ' The 3lst Sect, of the Act incorporating the Georgia Railroad & Banking Company provides, that contracts shall not be obligatory on the corporation unless signed by the president and countersigned by the cashier ; and it is insisted, that the letters offered in evidence are a virtual compliance with the terms of the charter. This statutory provision may be satisfied by an informal signing. But the president’s letter, in no way can be considered a signing within the provisions of the Act, to prove a contract with C. T. Mitchell on behalf of the corporation. So far from recognizing the contract with Wilde, he supposed, that it had been cancelled. The 46th Sect, of the Charter prescribes the mode of transferring stock by the debtors of the Bank, and limits any authority which the cashier possesses, derived from his powers as an executive officer. The charter also creates a lien on the stock of its debtors in favor of the company, and an amendment of the Act of incorporation, passed in 1843, authorizes a sale of the stock, bound by such lien, to be made as in the case of the foreclosure of mortgages of personal property. There was no evidence that the sale was ever made in the mode prescribed by this amended Áct, and that the stock had been transferred to, or vested in the . corporation by such sale.

Wilde was a special agent whose power was delegated by McKinley, and if there was any doubt respecting his character, it was the duty of the party dealing with him l£ to ascertain the nature and extent of his authority,” and if departed from or exceeded, he must be content to abide the consequences. (Pa-loy on Agency, by Lloyd, p. 199, note.)

In what relation is the defendant placed, by this correspondence, with William Bearing & Sons ? The argument assumes, that they were agents of the corporation in negotiating the sale, and that the letters, and the fact that Wm. Dealing had once been the president of, and had transacted business for, the corporation, establish this assumption. These circumstances are too slight to justify such an inference, especially against the language of the parties. Wilde’s letter of 7th of June does not constitute Dealing & Sons stock brokers in behalf of the Bank or of McKinley; but they are invited to become purchasers on their own account. A broker is a mere negotiator between the other parties and he never acts in his own name, but in the name of those who employ him: as a middle man he cannot fix the terms, but interprets between the principals; (Story on Agency, 31.) That a proposition to purchase should create a brokerage would confound the distinctions between purchaser and broker, which are, plain and well settled. Wilde’s first letter is a proposition to sell, his second excuses the neglect of transferring the shares, and King’s letter expressed a supposition, that the contract had been cancelled, and stated, that the difficulty of perfecting the agreement arose from the necessity of proceedings to foreclose as the Act prescribes.

A verdict for the plaintiff found on such testimony and thereby-establishing the liability of the defendant as a principal, acting by the agency of Wilde, King and Dealing, would have been not only palpably against, but without, evidence.

The defendant also rested his motion for a non-suit on the ground, that the plaintiff had failed to prove payment, or a tender, of the price of the stock, either by himself or by Dealing in his behalf. Unless Dealing & Sons acted as the agents of defendant and not of McKinley, it cannot be pretended that there was the slightest proof of a tender.

The agreement alleged was executory, in which a transfer or tender by the corporation,'or a payment or tender of payment by C. T. Mitchell, must be averred and proved before either can recover damages for a breach — (Kingston vs. Preston, Doug. 689; Calonel vs. Briggs, Salk. 113.) Where no time is agreed on for payment, the payment and delivery are concurrent acts, to be done at the same time — (2 Kent’s Com. 390.)

The plaintiff has averred that he was ready to pay and offered to pay. The allegation is material and must be proved. (Morton vs. Lamb, 6 T. R. 121.) He cannot impute to the defendant a non-performance of the agreement, unless he prove that he was ready to pay and made a tender of the price. “If there be a' tender of the money, the money must in general be produced: and must be paid into Court, so that the other party may take possession of it (Miller vs. Hilliard & Wade, Chev. 149.)

W. Dealing & Sons’ letters are referred to as evidence of a tender. Their language is, “ We bought of J. W. Wilde, cashier, the stock of Charles G. McKinley for Charles T. Mitchell. He is very desirous of having his certificate and paying the money.”

The desire and ability of a vendee to pay is no evidence of an offer to pay, nor will these circumstances prove a tender; which requires the production of the money, unless dispensed with, that it may be in the vendor’s power to receive and take it.

It was urged, that the transfer of the stock was a condition precedent to the payment. There is a class of cases referred to by Lord Kenyon in Morton vs. Lamb, depending on the order in which the several things are to be done, and to which this principle is applicable. The performance of an act will, in all such cases, be a condition precedent to the payment. The cases of Breithaupt vs. Thurmond, 3 Rich. 221, and Dubignon vs. Loud, 5 Rich. 251, recognize this principle in its application to the sale of real estate. The agreement alleged by the plaintiff, comes within the rule laid down in Morton vs. Lamb, which required performance on his part, by the proof of a tender of the price, and this the evidence has not shewn.

It is important, to preserve the distinction between questions of law and of fact, submitting the decision of each to the proper tribunal, and the practice of this Court is not to withhold from the jury the consideration and decision of questions of fact. But where there is no evidence, or no evidence on which they may raise a fair presumption of that which they are called upon to find, it would be fruitless to ask the expression of their opinion, and a non-suit should be ordered. The exercise of a Judge’s discretion, on such occasions, must not supersede the proper functions of the jury, and will always depend on the circumstances of each case.

This Court is satisfied with the judgment of the Circuit Judge, and the motion is dismissed.

O’Neall, Wardlaw, Frost, Wxthee.s and Whitner, JJ., concurred.

Motion dismissed.  