Citations for Defendant in Error.

seller to perfect the delivery, such fact will be generally conclusive that there was no receipt by the buyer.

The receipt and acceptance by the vendee under a verbal agreement, otherwise void by the statute of frauds, may be complete, although the terms of the contract are in dispute.

In this case, on the facts recited in the opinion of the court, the court held, (1) that there was sufficient evidence of a verbal agreement between the parties for the sale of the securities at the price named; (2) that the delivery of the property by the plaintiff was not such a delivery of it to the defendant as to amount to a receipt and acceptance of it by him, satisfying the statute of frauds; and (3) that that inchoate and complete delivery was not made perfect by the subsequent acts of the parties.

Ar law, in contract, to recover the value of certain securities alleged to have been sold by the plaintiff to the defendant. Judgment for plaintiff. Defendant sued out this writ of error. The case is stated in the opinion of the court.

Mr. Wayne Mc Veagh (with whom was Mr. A. H. Wintersteen on his brief), for plaintiff in error, cited: Wharton on Agency, § 125, note 6; People's Bank v. Gayley, 92 Penn. St. 518, 528; Caulkins v. Hellman, 47 N. Y. 449; Heermance v. Taylor, 14 Hun, 149; Gorham v. Fisher, 30 Vt. 428.

Mr. Theodore F. H. Meyer filed a brief for plaintiff in error, citing: Shindler v. Houston, 1 N. Y. (1 Comstock) 261; S. C. 49 Am. Dec. 316; Brand v. Focht, 1 Abb. (N. Y.) App. 185; Rodg ers v. Phillips, 40 N. Y. 519; Marsh v. Rouse, 44 N. Y. 643; Baldey v. Parker, 2 B. & C. 37; S.C. 3 D. & R. 220; Bushell v. Wheeler, 15 Q. B. 442; Cusack v. Robinson, 1 B. & S. 299; Stone v. Browning, 51 N. Y. 211; Mechanic's and Trad. er's Bank v. Farmer's and Mechanic's Bank, 60 N. Y. 40; Wright v. Cabot, 89 N. Y. 570; Butler v. Evening Mail Association, 61 N. Y. 634; Brabin v. Hyde, 32 N. Y. 519; Wilcox Silver Plate Co. v. Green, 72 N. Y. 17; Cross v. O'Donnell, 44 N. Y. 661; Cooke v. Millard, 65 N. Y. 352; Norman v. Phillips, 14 M. & W. 277; Morton v. Tibbett, 15 Q. B. 428.

Mr. Augustus C. Brown for defendant in error, cited: Wharton on Agency, § 490; Pentz v. Stanton, 10 Wend. 271; S. C. 25 Am. Dec. 558; Gregg v. Moss, 14 Wall. 564; Basset

Opinion of the Court.

v. United States, 9 Wall. 38; Zabriskie v. Smith, 13 N. Y. 322; S. C. 64 Am. Dec. 551; Betz v. Conner, 7 Daly, 550; Walsh v. Kelly, 40 N. Y. 556; Ayrault v. Pacific Bank, 47 N. Y. 570; Schile v. Brockhaus, 80 N. Y. 614; Garfield v. Paris, 96 U. S. 557; Cross v. O'Donnell, 44 N. Y. 661; Jackson v. Tupper, 101 N. Y. 515; Cusack v. Robinson, 1 B. & S. 299; Boutwell v. O'Keefe, 32 Barb. 434; Woodford v. Patterson, 32 Barb. 630; McKnight v. Dunlop, 5 N. Y. (1 Selden) 537; S. C. 55 Am. Dec. 370; Tompkinson v. Straight, 17 C. B. 697; Wilcox Silver Plate Co. v. Green, 72 N. Y. 17; Pinkham v. Mattox, 53 N. H. 600; Chaplin v. Rogers, 1 East, 192; Parker v. Wallis, 5 El. & Bl. 21; Bushell v. Wheeler, 15 Q. B. 442.

MR. JUSTICE MATTHEWS delivered the opinion of the court.

This is an action at law brought by Rufus P. Lincoln, a citizen of New York, against Charles S. Hinchman, a citizen of Pennsylvania, to recover $18,000 as the agreed price and value of certain securities, stocks, and bonds alleged to have been sold and delivered by the plaintiff to the defendant. The sale is alleged to have taken place on July 8, 1882. It is set forth in the complaint that the plaintiff acquired title to the securities in question by purchase of one John R. Bothwell, subject to any claim Wells, Fargo & Company had upon the same for advances made by them to or for the account of the said Bothwell; "that thereafter this plaintiff paid to Wells, Fargo & Company the amount of their said advances and took possession of said securities, stocks, and bonds, but stated to the above named defendant that he was willing and would pay over to the Stormont Silver Mining Company, which company was a large creditor of the said Bothwell, and in which company said defendant was very largely interested, any surplus which he derived in any way from said securities, stocks, and bonds, after having reimbursed himself in the sum of about $26,000 and interest for advances theretofore made by him to and for the account of the said Bothwell."

The answer denied the alleged sale and delivery. The action was tried in the Circuit Court of the United States for the Southern District of New York by a jury. There

Opinion of the Court.

was a verdict in favor of the plaintiff, on which judgment was rendered, to reverse which this writ of error is prosecuted.

A bill of exceptions sets out all the evidence in the cause, together with the charge of the court, and the exceptions taken to its rulings. At the close of the testimony, defendant's counsel, among other things, requested the court to charge the jury "that there is no evidence in the case of a completed sale of the securities to the defendant, and the plaintiff therefore cannot recover." This request was refused, and an exception taken by the defendant. This raises the general question whether there was sufficient evidence in support of the plaintiff's case to justify the court in submitting it to the jury. The defence rested upon two propositions: 1st, that there was no evidence of any agreement between the parties for a sale and purchase; and 2d, that, if there were, the agreement was not in writing, and there had been no receipt and acceptance of the subject of the sale or any part thereof by the defendant, and that consequently the agreement was within the prohibition of the statute of frauds in New York.

In regard to the first branch of the defence, we think there was sufficient evidence of a verbal agreement between the parties for the sale of the securities at the price named. It appeared in evidence that the plaintiff, having acquired title and possession to the securities previously belonging to Bothwell by paying off the advances due to Wells, Fargo & Company, agreed with the defendant, as representing the Stormont Silver Mining Company, to give to that company and other creditors of Clark and Bothwell the benefit of any surplus there might be after the payment of the amount due to the plaintiff. There is evidence tending to show that thereupon, a suggestion having been made that the defendant should purchase the securities from the plaintiff, it was agreed between them that the plaintiff would sell and the defendant would take them at the price of $18,000, and the next day at three o'clock was appointed as the time for delivery. By way of explanation, and as having a bearing upon other items of evidence in the cause, it is proper to say that the defendant's tes

Opinion of the Court.

timony in denial of the fact of the agreement tends to the point that the proposed purchase by him was not in his individual capacity, but as the representative of the Stormont Silver Mining Company, of which he was one of the trustees, and was made conditional on his procuring the assent thereto of the other trustees. We assume, however, in the further consideration of the case, that the jury were warranted in finding the fact of a verbal agreement of sale as alleged by the plaintiff. The question as thus narrowed is, whether there was sufficient evidence, to submit to the jury, of a receipt and acceptance by the defendant of the securities sold.

It appears that on July 8, 1882, in pursuance of the appointment made the day previously, the plaintiff handed the securities in question, at the office of the Stormont Silver Mining Company in New York, to Schuyler Van Rensselaer, who was the treasurer of that company, and took from him the following receipt:

"OFFICE OF STORMONT SILVER MINING COMPANY,

No. 2 Nassau, cor. of Wall Street, "President: William S. Clark. New York, July 8, 1882. "Secretary: John R. Bothwell.

"Received of Dr. Rufus P. Lincoln the following certificates of stock on behalf of C. S. Hinchman, and to be delivered to him when he fulfils his contract with Dr. Lincoln to purchase said stocks for $18,000 for

1,819

1,410

600

66

Starr Grove Silver M'g Co.

Menlo Gold Quartz Co., & order on Wells, Fargo

& Co. for 45,000 shares Quartz Co.

Satemo Gold Quartz Co.

100 66 N. Y. & Sea Beach R. R. Co.

Also $9500 in first mortgage bonds of the Battle Mn. & Lewis R. R. Co.

66 Witness: M. W. TYLER."

SCHUYLER VAN RENSSELAER.

Opinion of the Court.

The defendant was not present. The receipt, signed by Van Rensselaer, and which he gave to the plaintiff, was witnessed by M. W. Tyler, the plaintiff's attorney, and had been prepared by him. The securities mentioned therein are the same with those described in the complaint. For the purpose of proving the authority of Van Rensselaer to receive and receipt for the securities, some correspondence between the parties was put in evidence by the plaintiff, the material parts of which are as follows:

On July 21, 1882, Tyler, as attorney for the plaintiff, wrote to the defendant as follows:

"I was much disappointed in receiving your letter this afternoon, postponing your appointment with me in re Lincoln negotiation. When Dr. Lincoln accepted your offer of $18,000 for his position in reference to the Bothwell securities, he did so unqualifiedly, without even suggesting a modification of your offer, in the hope that in this way he would expedite a conclusion of the matter, and believing that nothing was open except the delivery of the securities, and the receipt of the price. This was on July 7th. On July 8th, learning from Mr. Van Rensselaer that you had left word with him to receive the securities, Dr. L. called on Mr. Van R. and left with him the securities just as he received them. Now, under these circumstances, Dr. L. feels as if there was nothing left to be done except the payment of the money, and that ought not to take very long. Now, I will do anything to accommodate you in this matter in the way of an appointment. If it is inconvenient for you to see me in New York, if you will appoint an early day I will meet you in Philadelphia. If you desire anything in particular should be signed or done by Dr. Lincoln in addition to what he has done already in delivering the securities to Mr. Van R., if you will write me what you request, I will prepare it and take it on with me for delivery to you."

On the same day the plaintiff wrote to the defendant as follows:

66

Agreeable to a note from Colonel Tyler, I went down town this P.M., to meet you as per appointment and receive payment