Esser v. Linderman

The opinion of the court was delivered, by

Sharswood, J.

It certainly was not competent for the defendant to state in his testimony, what the contents of the letter of the plaintiffs, to him of August 16th 1865, led him to believe. The question was what he had a right to infer from it, and that was a question of law upon the letter itself. There was no extrinsic evidence which created any ambiguity in the language, and which would have carried the case to the jury according to Smith v. Thompson, 8 Common Bench 44. “ Your account,” says the letter, “ should be strengthened by a deposit of say $300, or you should take up the Royal and St. Nicholas which we hold for you.” And in the postscript: “We simply ask that your account should be placed in a position that will insure us from loss. This point attended to, and we áre satisfied to carry your stock, otherwise not.” It seems they did sell the St. Nicholas, but not the Royal, and the defendant took the ground below that after this letter the plaintiffs were bound to sell, and were answerable to him for what the Royal would have produced at that time. But the letter most *81 clearly called for an answer. The defendant was asked to increase his margin or take up the stock. “ Please do one or the other at once,” said the letter. Had the plaintiffs sold without giving further notice, and the stock had afterwards gone up, they would have been responsible, according to Diller v. Brubaker, 2 P. F. Smith 498. It is nothing to the purpose that they did sell the St. Nicholas. They assumed the risk, but had a right not to do so as to the Royal, but to hold it until they should receive orders to sell. Nor do we think that it was incumbent to produce a certificate for the stock on the trial. They gave evidence by the transfer-book of the company that they had bought the stock at the time the order was given, and one of the plaintiffs testified that they had possession of the certificate. When one man lays out money at the request of another in the purchase of a chattel, he can sue for the money without any tender of the thing. It is not until the defendant has paid or tendered the sum thus laid out and expended for his use and at his request, that he can demand its delivery. He may ask the court in the exercise of its equitable powers to control the execution so as to secure to him possession of the certificate, but it is no defence against the plaintiffs, action to prevent judgment.

Judgment affirmed.