Evans v. Wells.

I have found but one, 11 Mass. R. 27, which extends the doctrine so as to make the written evidence of one man's liability on a contract, exclusive of all parol testimony of the liability of another on the same matter. This, as I have already shown, is contradicted by many well settled decisions, and I conceive that the equity of the present cause demands that it should be added to the number.

On the whole of the matter, my opinion is, that if the defendants below could show by parol proof that the plaintiffs had ratified, or assumed by their acts or assent, the bargain, of which the release under seal signed by the agents themselves contained the terms, such proof should have been admitted; that the release itself should be admitted in evidence of the terms of the compromise so ratified or assumed; and that it was then competent to show the performance of those terms by part payments, making a new note or security, or by conveyance of lands.

As the judge at the trial refused to admit the release in evidence, or to allow proof of the payments as made under it for any other purpose than as a credit or partial payment, and regarded the conveyance of the lands as admissible only for the same purpose, I think the judgment of the supreme court sustaining his opinion should be reversed, and a new trial granted.

After reading the above opinion, Senator VERPLANCK added, in substance as follows:

The opinion just read by me was prepared without anticipating a difficulty as to the effect and validity of the compromise, which has just been stated by the chancellor it is, that the conveyance of the lands in trust by Hill is a nullity, being to convey to certain creditors in satisfaction of debts; and in case of their refusal to accept, then to sell or mortgage for their general benefit-which is not among the trusts enumerated in the revised statutes, as valid. This objection was not taken in argument before us, nor is it noticed in the opinion of the supreme court. I have therefore great reluctance to enter into the discussion of the point, even had I given it greater attention than I have done, as it

Evans v. Wells.

would, in this indirect way and without argument, perhaps, affect other and greater questions of our yet unsettled law of trusts under the revised statutes.

I can therefore only express my opinion, as at present advised, that the conveyance in trust to sell or mortgage in certain alternatives, does pass a legal estate to the grantee; that, independently of that estate, the trust to convey in satisfaction of prior debts, though in itself probably void as a trust, is yet good as a special power in trust. It falls within the definition of the statute. "It is an authority to do some act in relation to lands in the creation of estates, which the owner granting such power might himself lawfully perform." 1 R. S. 732, § 74. It is special, because "the persons to whom the disposition of the lands under the power is to be made are designated; and according to the 95th $, it is also a special power in trust. If so, the instrument is valid and effectual for all the purposes of the compromise, especially when the grantee of the power tendered its full and legal execution.

As, however, the consideration of the legal effect and character of the instrument, as well as of the conditions of the compromise and of their actual or tendered performance were excluded by the judge, I think, that independently of the correctness of my view of the legal character of the instrument, a new trial should be granted.

On the question being put, Shall this judgment be reversed? the members of the court divided as follows:

In the affirmative: Senators FURMAN, HAWKINS, HULL, HUNT, HUNTINGTON, MAYNARD, NICHOLAS, PECK, POWERS, SKINNER, STERLING, VERPLANCK, WORKS-13.

In the negative: The PRESIDENT of the Senate. The CHANCELLOR, and Senators EDWARDS, H. A. LIVINGSTON, PAIGE, WAGER-6.

Whereupon the judgment of the supreme court was REVERSED, and a venire de novo awarded.

THE COMMERCIAL BANK OF BUFFALO v. Kortright.

An action of assumpsit lies against a corporation for refusing to permit a transfer of stock upon its books; and the measure of damages is the full value of the stock at its highest price at any time between the refusal and the commencement of the suit. Quere. Might not the time have been extended to the day of trial?

A blank transfer of a certificate of stock, where the holder has affixed his name and seal upon the back of the certificate is valid; and the transferee is authorized to fill it up by writing a transfer and a power of attorney over the signature.

Proof of custom as to the mode of transferring stock is admissible.

A corporation is bound by the acts of its acknowledged agents in the common transactions of the corporation, although the appointment of the agents be not evidenced by the records of the corporation.

A transfer of stock in a monied corporation is good as between the vendor and purchaser although not registered in the transfer book of the corporation, notwithstanding a statutory provision, that no transfer shall be valid unless so registered; the evidence of right to the stock as between the parties themselves not being within the purview of the statute. A principal is bound by the act of his agent in disposing of his property where the latter is furnished with the external indicia of right to dispose of it, notwithstanding that he may have deviated from the secret instructions of his principal."

ERROR from the supreme court. Kortright brought an action of assumpsit against the Commercial Bank of Buffalo, for the refusal of the bank to permit a transfer to be made upon its books of 100 shares of stock, standing there in the name of Pierre A. Barker. On the first of October, 1834, Barker being the holder of a certificate of stock, signed by the cashier of the Commercial Bank of Buffalo, stating that he was entitled to 100 shares, of the value of $100 each, in

*The CHANCELLOR, who delivered a dissenting opinion in this case, holds, that where the charter of a monied corporation contains a provision that no transfer of its stock shall be valid, unless registered in the books of the corporation, that an unregistered transfer does not convey the legal title to the stock, but merely confers an equitable interest in it, and that, subject to all previously existing equities. He further holds, that the plaintiff was not entitled to sustain an action at law, and that if such action did lie the utmost extent of the plaintiff's claim would be for the depreciation in the value of the stock.

Com. Bank of Buffalo v. Kortright.

the capital stock of that bank, transferable only on the books of the bank by Barker, or his attorney, on surrender of the certificate-sent the certificate, together with his promissory note for $10,000, as collateral security to one Bartow, who was at that time cashier of the commercial Bank at Albany, to obtain a loan of $10,000. Before transmitting the certificate of stock, he endorsed upon it his name, to which he attached a seal. On the second day of October, 1835, at the city of New-York, an agent of Bartow negotiated the certificate of stock above mentioned, and other stocks, by delivering the same to the plaintiff, from whom he obtained a loan of $25,000. The plaintiff gave a receipt for the stocks promising to return the same on repayment of the $25,000 with interest, on demand, after thirty days from the date of his receipt. Bartow absconded on the day that the plaintiff advanced the money, and the latter filled up the blank transfer, by writing over the name and seal of Barker an assignment, transferring the stock to himself, and constituting S. A. Sherwood, attorney, to do all necessary acts to perfect the transfer. On the second of November, 1835, Sherwood went to the bank at Buffalo, and requested permission to transfer the stock, which was refused by the original stockholder, who was then acting as president of the Commercial Bank, on the ground of apprehended difficulty in respect to the note for $10,000, which had not been transferred to the plaintiff. On the trial, however, it appeared that Barker had obtained possession of the note, and that this suit was probably defended for the benefit of the Commercial Bank of Albany, who claimed that Bartow had gone off their debtor to a large amount. When Barker refused to permit the transfer on the books of the bank, he conceded that he had received the $10,000 of Bartow, and offered to pay that sum to Sherwood, which was declined to be accepted. It was proved, that from January to June, 1836, the stock of this bank ranged as high as from 150 to 300 per cent. advance. A witness for the plaintiff tistified, that he was acquainted with the business of trans

Com. Bank of Buffalo v. Kortright.

ferring stocks, having been in that business twenty years, and that it was the universal usage in the city of New-York, and in other places, to transfer stocks by blank endorsements, or blank powers of attorney; that he had been in the habit of transferring in this manner stocks of nearly all the states of the Union, and that stocks are frequently sent in like manner to England; to this evidence the defendants excepted. The judge charged the jury, that the plaintiff was entitled to recover, and that the rule of damages was, the highest price that the stock bore at any time after the demand for permission to make the transfer on the books of the company, and before the commencement of the suit. The defendants also excepted to the charge of the judge, and the jury found a verdict in favor of the plaintiff for $13,536,35.

The defendants applied to the supreme court for a new trial, which was refused, and judgement rendered for the plaintiff. The defendants thereupon sued out a writ of erSee the opinion of the chief justice delivered in the supreme court. 20 Wendell, 93, et seq. The case was argued in this court by

ror.

J. Van Buren & S. Stevens, for the plaintiffs in error.

S. Sherwood & D. B. Ogden, for the defendant in error. After advisement, the following opinions were delivered:

By the CHANCELLOR. The first objection to the right of the plaintiff below to recover against the bank is, that there was not a sufficient demand of the right to transfer the shares on the books of the bank. This objection is as to a mere matter of from, and clearly is not well taken. Although Barker, as the owner of shares standing in his name on the books of the company, but which he had made an equitable hypothecation of to secure the payment of the note to Bartow had a personal interest to protect, he was still the president of the bank; and if Kortright was entitled to an obsolute transfer of the stock to himself upon the