White v. Salisbury

• Decision Date: 31 October 1862
• Citation: 33 Mo. 150
• Parties: JOHN F. WHITE, EXECUTOR, &c., Appellant, v. LORD W. SALISBURY et al., Respondents.
• Court: Missouri Supreme Court

33 Mo. 150

JOHN F. WHITE, EXECUTOR, &c., Appellant,

v.LORD W. SALISBURY et al., Respondents.

Supreme Court of Missouri.

October Term, 1862.

Appeal from Montgomery Circuit Court.

The appellant sued the respondents upon the following instrument of writing:

“We, the undersigned, agree to pay and deliver to William White, or order, seven hundred and seventy-seven dollars and sixteen and three-fourths cents in railroad stock of the North Missouri Railroad Company, the same to be delivered to him on or before the fifteenth day of July next, which amount is understood to be seven shares and 77 3/4 of a share. The above shares are given in discharge of a note given by L. W. Salisbury to William White for $616.72, and dated February 21, 1853. L. W. Salisbury, H. D. Brown. Test: W. G. Shackelford. Dated 22d June, 1857.”

Plaintiff averred in his petition that the defendants had failed to comply with their contract, in not delivering the railroad stock on or before the fifteenth day of July, 1857, the time agreed upon for its delivery, and claimed damages to the amount of the consideration advanced by White to Salisbury and Brown, being the note he (White) held on Salisbury for the sum of $616.72.

The answer of the defendants denied that plaintiff was entitled to damages, as claimed, or in any sum; that defendants did, in compliance with the terms of their contract, on the fifteenth day of July, 1857, have the requisite number of shares entered in the name of William White upon the books of the North Missouri Railroad Company.

This cause was submitted to the court without a jury, and the following declarations of law were prayed by plaintiff:

1. That, under the terms of the contract read in evidence between the plaintiff's testator and defendants, the defendants were bound to deliver, on or before the fifteenth day of July, 1857, a certificate of the stock contracted to be delivered, and that a transfer upon the books of the company, on the fifteenth day of July, 1857, or at any previous time, without any notice to White, is not in law a sufficient delivery under said contract.

2. That the agreement was made upon the consideration of a discharge of a note held by White against Salisbury, and, upon failure to deliver according to the terms of the contract, the measure of damages is the full value of said note, with interest. The court refused the instructions, and gave a judgment for the defendants.

Jones & Hayden, for appellant.

I. That under the contract a transfer or entry upon the books of the company of the amount of stock contracted to the delivered was no delivery, either actual or symbolical.

In this case the parties have in the contract fixed and liquidated the damages; the agreement is to pay and deliver so many dollars in railroad stock, being so many shares, being precisely the amount of the note of Salisbury, with the interest added in up to the date of the contract, June 2, 1857. If a party agrees to pay and deliver a thousand dollars to another in hogs, the damages to the party, when he has paid the thousand dollars, is that amount, with interest, and not a less sum, because the terms of the contract and the payment of the money show what the party's liability is by the agreement itself. (See Clamorgan v. Lisa's Exec'rs, 1 Mo. 99; Bush v. Canfield, 2 Conn. 485; Sedgwick on Meas. of Dam. 269 et seq.; 19 Conn. 212.)

Sharp & Broadhead, for respondents.

I. The act of respondent Salisbury, in procuring a transfer of the amount of the stock called for by the contract on the books of the North Missouri Railroad Company, is a substantial compliance with the contract. It may be safely stated, that upon an agreement for the sale of personal chattels, where the property is in its nature intangible and incapable of manual or actual delivery, that if the vendor, by his act, passes the title to the vendee and puts it out of his power to recall it, that it amounts to a delivery. (Acts of 1853, pp. 325 and 326, sec. 8.) This was done by act of the company, and the mere fact that the new...