Jones, J. (after citing the facts and setting forth Exhibits A to L, inclusive).
The plaintiffs claim :
1. The dividends declared on the one thousand shares, and interest. 2. The difference between the value of one thousand of the alleged additional shares on February 8, 1868, and the sum required by the company to be paid therefor, and interest. 3. The difference between the value of the one thousand shares mentioned in the contract, on February 8, 1868, and the contract price and interest.
The defendant contests all these claims, and himself claims the difference between the contract price of the one thousand shares mentioned in the contract, and their [369]*369marketable value on December 19, 1867, with interest thereon.
As to the plaintiffs’ claims—
The first two evidently depend on whether the contract was executed or executory ; that is, whether it operated as an actual and present sale, or only as an agreement to sell, to be carried into effect on a future day.
Dividends declared and additional shares issued, when declared and issued, become the property of those who own the stock in respect whereof they are declared and issued at the time of said issue and declaration. They are not incorporated in, nor do they become a part of that stock in respect whereof they are issued, but are mere profits arising therefrom to the then owners thereof.
One, by making a contract whereby he agrees to sell, a year after its date, property real or personal, does not thereby deprive himself of any profit which may have accrued therefrom, or advantage which may arise from its possession or use during that year; nor do such profits and advantages pass to the purchaser in the absence of an express contract that they shall pass.
If, then, the contract in question is executory, and remained unexecuted until after the dividends Avere declared and the additional stock was issued, the plaintiffs are not entitled to them.
It is often a matter of great difficulty to determine whether a contract is executed or executory; but, in this case, whatever doubts I may have had are set at rest by the case of Kelly v. Upton, decided by the general term of this court (5 Duer, 336),, which is a direct authority in point, and according to which the contract in question is executory.
Nothing was attempted to be done to execute it until December 19, 1867, long* after the dividends were declared and the additional stock issued.
It results that the first two claims of plaintiffs must be disallowed.
The third claim is founded on an erroneous application of the rule relative to the measure of damages.
[370]*370This defendant, if liable ¿ at all, is so for the simple breach of a contract to deliver certain stock, the vendee not having paid to him the purchase money in advance. In such case the measure of damage is the difference between the contract price of the articles agreed to be sold, and their market price on the day of the breach.
This difference the plaintiffs would be entitled to recover. It therefore becomes necessafy to ascertain whether the defendant broke his contract. If so, when, and the market value of the stock on the day of the breach.
If there has been any breach by defendant it occurred either on December 19 or 31, 1867. As the market value of the stock on one of those days was less than the contract price, plaintiffs, even if there was a breach by defendant, suffered no actual damage. It is therefore unnecessary in this view to consider whether there was such breach.
As to the defendant’s claim. This rests on the defendant’ s allegation that there was a breach of the contract on plaintiffs’ part on December 19. To establish such breach, he insists that he, on that day, tendered, and was ready and offered to deliver the stock, but plaintiffs neglected to receive it and pay for it. Assuming that his handing up Exhibit H, the stock being in his ■ possession, was a sufficient tender, and a sufficient indication to plaintiffs of his readiness and ability then and there to fulfill his contract, yet the effect of it was done away by his subsequent acts at the same interviews ; for, after plaintiffs handed him Exhibits I and K he clearly withdrew his previous tender, and declared himself not ready then to fulfill his contract, by saying that lie desired time to consult his lawyer, and would re-tarn shortly, and therenpon departing with the stock in his possession.
The result arrived at is that neither party has a claim against the other for damages arising out of a breach of the .contract in question, and that each party is entitled [371]*371to a return of the deposit made by him, with the interest thereon.
The case is one in which each party should pay his own costs.
Judgment was, on October 24, 1868, entered in conformity with the findings and opinion of said justice, and from so much of the judgment as directs the plaintiffs to indorse the six certificates of deposit issued to the defendant, and to do other things in respect thereto, and as adjudges that the plaintiffs recover nothing from the defendant, the plaintiffs appeal to the general term.
By the Court. Freedman, J.
The plaintiffs claim that they are entitled to recover against the defendant:
I. The $8,000 cash dividends declared upon the first one thousand shares mentioned and referred to in the contract of February 18, 1867, with interest.
II. The value of one thousand additional shares of an alleged later issue, at the price of 149, that being the alleged market value of the same on February 8, 1867, less the price of 54, at which they were issued by the company, with interest, &c.
III. A cash dividend of $4,000, claimed to have been made upon the one thousand additional shares of the later issue; and,
IY. The value of the first thousand shares of Hudson River Railroad stock, mentioned in the contract of February 18, 1867, at the price of 149, that being the alleged market value of the same on February 8, 1868, after deducting therefrom the contract price of 128, with interest at the rate of six per cent, added thereto, from the date of the contract.
Upon a mere inspection of the contract, it does not appear whether the defendant had or had not at the time the possession of the one thousand shares therein referred to ; and the first question which presents itself is as to the effect of the said contract. Does it constitute an actual bargain and sale, whereby the one thousand shares, the subject of the said contracts, became the [372]*372property of the plaintiffs the moment' the contract was concluded, and without regard to the fact that the defendant had the option to deliver the shares at any time during the year he saw fit; or, is it a mere executory agreement, an agreement to sell, to be carried into effect at some time during the course of that year, according to the pleasure of the defendant \
There is no doubt,—to use the language of Judge Comstock in Decker v. Furniss (14 N. Y. [4 Kern.], 612), —:that the phrases “we have purchased” and “Ihave sold” standing at the head of the contract import an executed sale; bút such phrases are quite inconclusive, and are often made to yield to other terms of the contract evincing a different design, and they are qualified in this case by the words, “payable and deliverable, seller’s option, in this year (1867), with interest at the rate of six per cent, per annum ; either party having the right to call, from time to time, for deposits to meet the fluctuations of the market.”
The defendant’s engagement to deliver was not unconditional, but dependent upon the exercise of his option ; he had a right to perform that part of the contract at any time between the date thereof and December 31, 1867; he was in no way chargeable for the non-delivery until after the expiration of the last-named day, and a tender on the part of the plaintiffs after that day ; and before the exercise of the option by the defendant, neither of the parties could be in default before said December 31, 1867 (Russell v. Nicoll, 3 Wend., 112 ; Out-water v. Dodge, 7 Cow., 85; Ward v. Shaw, 7 Wend., 405 ; McDonald v. Hewitt, 15 Johns., 349).
The obligation of the vendor in this case to deliver, and that of the buyers to pay, are concurrent conditions in the nature of mutual conditions precedent, and neither party can enforce the contract against the other without showing performance, or offer to perform his own promise according to the conditions of the contract; and, as the vendor had the option to deliver at any time, according to his pleasure, between the day of the c.on-[373]*373tract and December 31, 1867, and the buyers could not be called upon to pay before delivery, it cannot be considered as an executed contract of salé.
it is true that in some cases, notwithstanding the postponement of payment and delivery, it has been held that the right of property became vested in the vendee, while the right of possession continued in the vendor until the payment of the purchase money ; but these cases have reference only to the sale of specific personal property, and if the plaintiffs intend to claim title to the one thousand shares upon the principles decided by these cases, they should have shown either that the identical one thousand shares were, at the time of the execution of the contract, in the possession of the defendant, or some other specified place ; that they were defined and designated so as to be capable of being identified and distinguished from other shares of thé same company, and that the contract referred to this particular lot.
It does not appear from the contract that reference wás had or made to any Specific or particular lot of shares, nor does the evidence show that such was the intention of the parties, and, therefore, the general rule applies, that if goods be sold while mingled with others, by number or otherwise, the sale is incomplete, and the title continues with the seller until the bargained property be separated or identified (2 Kent Com., 496). The réason is, in such case, that the sale cannot be applied to any article until it is clearly designated, and its identity thus ascertained. Thus, if an entire flock of sheep is sold at so much the head, and it is agréed that they shall be counted after the sale in order to determine the entire price of the whole, the sale is valid and complete. But if a given number out of the whole aré sold, no title is acquired by the purchaser until they are separated, and their identity thus ascertained and determined. The distinction in all these cases does not depend so much upon what is to be doné, as upon the object which is to be effected by it. If that object is specification, the property is not changed,—but if it is merely to ascertain the total [374]*374value at designated rates, the change of title is effected. Thus, where there is a "bargain for a certain quantity, ex. a greater quantity, and there is a power of selection in the vendor to deliver which he thinks fit, then the right to the property does not 'pass to the vendee until the vendor has made his selection, and trover is not maintainable until that is done. If I agree to deliver a certain quantity of oil, as ten out of eighteen tons, no one can say which part of the whole quantity I have agreed to deliver, until a selection is made. There is no individuality until it has been divided (Gillett v. Hill, 2 C. & M., 530).
The case of Kimberly v. Patchin (19 N. Y., 330), does not establish a contrary doctrine, as claimed by plaintiffs, but on examination it will be seen that it is in perfect harmony with the general rule referred to by me. In this case the parties clearly expressed their intention that the title should pass. The owner of the wheat, lying in mass in his warehouse, sold six thousand bushels thereof for a specified price, executed to the vendee a receipt, acknowledging himself to hold the wheat subject to the purchaser’s order, received drafts on account of the purchase money, and fully arranged for the payment of the balance, and otherwise fully completed the sale, so far as necessary. Under these circumstances the court held, among other things, that where the quantity, and general mass from which it is to be taken, are specified, the subject of the contract is thus, ascertained, and it becomes a possible result for the title to pass, if the sale is complete in all its other circumstances, &c. And the title may also pass where goods are delivered by the vendor to the purchaser, although no fixed price is agreed upon. Thus, in Joyce v. Swann (17 Com. B. N. S., 84, 1864), cited by plaintiffs, the question was whether or not one McCaster had an • insurable interest in a certain quantity of guano, at the time of effecting the policy, and the judge charged the jury to the effect that, if the guano was put on board the vessel by the vendors, with the intention of passing [375]*375the property to McCaster, they must find for the plaintiff; and that it was not a necessary condition to the passing of the property that the price should be definitely agreed on. The jury rendered a verdict for the plaintiff.
Williams, J., who delivered one of the opinions in banco, approves the verdict on all the facts in the case, and says that “where, from all the facts in the case, it may fairly be inferred that.it was the intention of the seller to pass the property in the goods shipped to order, the mere fact of the bill of lading being taken in the name of the seller, will not prevent its passing ; but if the bill of lading was retained to hold dominion over the goods, that then there was no intention to pass the property ; but if the whole of the circumstances lead to the conclusion that that was not the object, the form of the bill of lading has no influence on the result. In this case the bill of lading was in the name of the seller.”
Such cases, however, are exceptions to the general rule, and they merely decide that the title may pass where it is the clear and positive intention of both contracting parties that it shall pass. But the old rule which held that upon a sale of a specific chattel, notwithstanding the postponement of payment and delivery, the right of pro2>erty may in some cases become vested in the vendee, while the right of possession only continues in the vendor until the payment of the purchase money, has not only been modified in this State in all cases where payment and delivery are to be in futuro, and are to be simultaneous and concurrent acts (Benedict v. Field, 16 N. Y., 595 ; Baker v. Bourcicault, 1 Daly, 24; Russell v. Minor, 22 Wend., 664-671; Chapman v. Lathrop, 6 Cow., 110); but also in cases where the contract shows there is no intention to pass the property, until something further is done by the seller. In such cases it has been held that the sale is not -perfected. and the property does not pass until the thing be done (Ward v. Shaw, 7 Wend., 404 ; Chapman v. Kent, 3 Duer, 232).
[376]*376In the case under consideration the defendant had until December 31, 1867, to exercise his option. The plaintiffs and the defendant are stockbrokers ; they dealt with each other as such; it may be assumed that the plaintiffs were well acquainted with the rules and custom prevailing among brokers as to the sale of stocks, and with the fact that it was not necessary for the defendant under his contract to have the one thousand shares of stock actually on hand. Formerly, such á contract was a mere wager, and illegal by statute, whenever the seller did not possess the stocks at the time {Rev. Stat., Art. 2, tit. 19, ch. 20, §§ 6, 7 and 8); but this statute was repealed by an act entitled “An act to legalize the sale of stocks on time” (4 Edm. Rev. Stat., 110), and in this repealing statute is an express provision that hereafter no contract for the purchase, sale, &c., of stocks shall be void, because the vendor at the time of making the contract, is not the owner of the shares. This statute, therefore, legalizes contracts for the sale of stocks on time, and which the vendor does not own; The plaintiffs undotibtedly were familiar with it, and it cannot therefore be said in the light of this statute, and the contract palpably drawn under it, and also in the light of the object of the contract, that the defendant contracted for the delivery of a certain specific lot of one thousand shares, or warranted the present possession by him of any such lot off February 18, 1867.
For the purpose of carrying out his contract as made, it was not necessary for the defendant to be a stockholder on the books of the company at any time ;• it was sufficient if) on December 31, 1867, lie held a certificate representing one thousand shares, with the necessary power of attorney to transfer the same, and if he held such certificate at any time prior to said date, he had a right to use it, and the number of shares represented thereby, in his business, in any manner he saw fit, until that day. The rule, therefore, that a vendor impliedly warrants his title to what he assumes to sell, and consequently warrants the existence of what he assumes to [377]*377sell, does not, since the passage of the statute referred to, necessarily apply any more to contracts for the sale of stocks on time, and for this reason it is unnecessary to notice or examine the numerous authorities cited by plaintiffs’ counsel in support of the application of the rule referred to the contract in this case. Under the said statute, a party may make a contract for the purchase of stocks on time with a person who neither owns the stock, nor has the possession or control of it; but if the purchaser fails to guard his own interests by express stipulations against the dilution of the stock by the company by which it has been issued, it seems to me the contract may afterwards be satisfied by the delivery of stock as it exists on the day the contract is to be performed, and unless the purchaser insists in his contract upon all dividends, profits and advantages which may be declared upon or spring from the stock during the running of the contract, he should not, in my judgment, be afterwards permitted to make claim to them. A little prudence exercised at the proper time will enable him to secure all his contemplated rights in this respect.
Again, as the defendant was tinder no obligation to be a stockholder on the books of the company, nor to have a certificate for One thousand shares ready for delivery prior to December 31,1867, how can it be said that it was his duty on or about April 10,1867, to subscribe for one thousand additional shares, which he could do in no other way except by becoming a stockholder upon the books of the company before that time, and to furnish the necessary funds to the amount of upwards of fifty thousand dollars to meet his subscription? Of what value would the option he expressly reserved to himself be in such case ?
All these circumstances tend to show that the contracting parties at the time of the execution of the contract could not have contemplated that the title to the shares should pass.
It has been conceded by plaintiffs’ counsel that the justice who tried this cause was correct in holding that [378]*378dividends declared and additional shares issued, when declared and issued, become the property of those who own the stock, in respect whereof they are declared and issued at the time of such issue and declaration, and that they are not incorporated in, nor do they become a part of that stock in respect whereof they are issued, .but are mere profits arising therefrom to the then owners thereof. There can be no doubt of the correctness of this proposition generally, although, strictly speaking, the profits do not arise from the stock, but are earned by the corporation, and are distributed to such owners as are recognized as such on the books of the company.
In Spear v. Hart (3 Rob., 420) the dividend had been declared before the sale, but was payable after the. day fixed for the delivery of the stock, and the court held “that the dividend belonged to the defendant, and did not pass to the plaintiff under the contract. Dividends are not an incident to stock, so as to pass with the stock. Unlike interest, they are not earned by the money represented in the stock, but by the corporation ; and are divided among the shareholders, and may be sold or assigned without parting with the stock.”
Kelly v. Upton (5 Duer, 336) is a case presenting the same questions as the case now under consideration, with the difference that in that case the option was on the part of the buyer. The court held that the contract was executory, that where the delivery of the thing sold, and the payment of the price are to be simultaneous acts, the title, until delivery or paymei.t, remains in the seller.
The two cases last referred to seem fatal to the first three claims of the plaintiffs. They expressly decide that the contract in this case must be considered as an executory agreement, passing no title to the plaintiffs, however different their understanding of its effect may have been, and that the dividends and accretions as a general rule follow the title.
The plaintiffs, notwithstanding, however, claim that, [379]*379although this may be so, the provision in the contract in this action that the purchasers should pay interest on the contract price from the date of the contract, is such a peculiar and controlling feature in the said contract in respect to its interpretation as to take it out of the operation of the general rule, that in consequence thereof it should be so interpreted so as to hold the vendor liable to deliver the profits with the shares sold. The contract in Kelly v. Upton (5 Duer, 336) contained the same feature. The learned counsel for the plaintiffs contended for the correctness of this theory so strenuously and persistently that in view of the importance of this case I made a complete and thorough examination and classification of the numerous authorities cited by the plaintiffs promiscuously upon this point. They establish the following principles:
I. In case of non-performance of a contract at the time fixed for the completion of the same, without willful fault on either side, the purchaser as a general rule is entitled to the profits of the estate from the time fixed upon for completing the contract, whether he does or does not take possession of the estate ; and as from that time the money belongs to the vendor, the purchaser will be compelled to pay interest for it, if not paid at that day (2 Sugd. V. & P., 793; Acland v. Gaisford, 2 Madd., 356, 1816 ; Champernowne v. Brooke, 3 Clark & F. App. Cas., 4, 1835).
II. Where, however, interest is more in amount than the rents and profits, and it is clearly made out that the delay was occasioned by the vendor, although he may be free from personal misconduct, as for instance where the delay is occasioned by a defect in the vendor’s title, which may be unknown to him, to give effect to the general rule would be to enable the vendor to profit by his own wrong, and the court therefore in such case f gives the vendor no interest, but leaves him in possession of the interim rents and profits ; and therefore, in such case, where a good title is not shown until a given period, the purchaser will pay interest only from that [380]*380period, and he will, of course, take the rents from the same timé {Sugd. V. & P., 806, § 46).
III. Where the non-performance and delay has beeii occasioned "by the willful default of the vendor, and the vendor has received interest, or has remained in possession, and in the mean time the property has diminished in value or has "been deteriorated by permissive waste, the purchaser is entitled to compensation, which may be decreed according to the circumstances of each case; as by adjudging the '• vendor not entitled to interest on the purchase money, but on the contrary accountable not only for the rents actually received, but also for those which he might have received but for his willful default {Sugd; V. & P ., 806, § 44; Regents’ Canal Co. v. Ware, 23 Beav., 575, 1857, Lord Romilly).
IV. But where there is an express stipulation in the contract that if the conveyance is not executed and the purchase money paid on the day named, interest shall be paid by the purchasers until the purchase is completed, the terms of that stipulation apply to every kind of delay, except such as may be occasioned by the willful default of the vendor.
In such cases the interest does not depend upon any rulé of the court, but upon the express stipulation of the parties; and the terms of that stipulation apply to every delay, however occasioned, except the willful default of the vendor, or such other delay as may be expressly excepted from the operation of the contract; and whether in such cases the interest exceed the mesne profits or not, the purchaser must pay interest according to Ms stipulation (Palmerston v. Turner, 33 Beav., 525, 1864, Lord Romilly, in which case the purchaser was held to pay interest at 4 per cent.; William v. Glenton, 34 Beav., 528, 1865 ; Tewart v. Lawson, 3 Smale & G., 307, 1856, V. C. Stewart).
V. If; after the contract and before the conveyance, the estate, or á particular and specific fund, or a vested right or specific interest, be improved or increased, or if the value be lessened without any fault on either side, [381]*381the vendee has the benefit and sustains the loss (Sudg. V. & P., 819, § 98; Anson v. Towgood, 1 Jacob & W. Ch., 617, 1820 ; Vesey v. Elwood, 3 Drury & W., 74, 1842; Kimberly v. Tew, 5 Irish Eq., 389, 1843 ; Davy v. Barber, 2 Atk., 490, 1742 ; Small v. Atwood, 3 Young & C. Exch., 105, 1838).
The cases, so far examined, refer either to a specific estate in land, a specific interest in a particular fund, a specific vested right, or other specific property fully described and clearly identified, and, therefore, have no application to a contract for the sale of stocks generally, which may or may not be in the possession of the seller, which are not described so as to be capable of being distinguished and identified. The decision in each of said cases was made upon entirely different principles from those governing the sale of stocks on time. The profits and rents of an estate run with the land and come out of it; the interest and other accumulations attach to a specific fund and become part of the same. It is different, however, with stocks. Again it will be observed, that in every case so cited there was either a default on the part of the vendor in carrying out his contract, or, at any rate, the other party suffered delay in receiving what was coming to him ; but notwithstanding this, the purchaser was invariably held to the terms of his contract, whenever he had stipulated to pay interest. In the case under consideration, the vendor did not make any such default.
VI. The next following additional cases cited by the pleaintiffs simply decide that whenever a debtor is in default for not paying or repaying money, delivering property, or rendering services in pursuance of his contract, he is chargeable with interest from the time of his default, on the specified amount of money, or the value of the property or services, at the time they should have been paid or repaid or rendered (Van Rensselaer v. Jewett, 2 N. Y. [2 Comst.] , 140 ; Rensselaer Factory v. Reid, 5 Cow., 587; Cleveland v. Burrill, 25 Barb., 538 ; Viele v. Troy & Boston R. R. Co., 21 Id., 396).
[382]*382As the defendant in this case, under his option, had the right to postpone the performance of his contract until long after the dividends had been declared and the additional stock issued, it is very clear upon the principles laid down in the cases above cited, that he could not have made default, so as to entitle the plaintiffs to these dividends and accretions, upon the mere ground that they had voluntarily agreed to pay interest from the date of their contract.
VIL The decision in the cases of Courtney v. Ferrers (1 Sim., 137, 1827), Webster v. Donaldson (34 Beav., 451, 1865), Terry v. Wheeler (25 N. Y., 520, 1862), turns upon the peculiar circumstances of each case.
In Courtney v. Ferrers the assignment of the policy assigned “ the policy and all moneys, benefits and advantages to arise, accrue or become due or payable upon, or by virtue of it in any manner,” and the vice chancellor therefore held that the whole fruits of the policy passed.
In Webster v. Donaldson the plaintiff, in May, 1863, agreed to purchase an estate, including hay and crops, for £9,000. The purchase was to be completed on June 24, when plaintiff was to have possession, and if not then completed, the plaintiff was to pay interest at the rate of three per cent, on the purchase money from that day. By subsequent agreement, at the request of the purchaser, November was substituted for June. The contract was not concluded until February following, when the plaintiff paid the purchase money, with interest only from September 29, 1863. In the mean time the vendors sold the hay and garden produce, and it was held that, under the altered contract, the plaintiff was not entitled to the hay or produce. The Master' of the Rolls says : “I think that, having regard to the conditions of sale, the hay and growing crops were limited to those existing at the time of the conclusion of the sale ; but as the purchaser was not to have possession until the purchase was completed, he could not properly gather the crops before that time.”
[383]*383And as the conditions, as varied, expressly stated that the purchaser is not to receive any of the rents or profits of the lands until September 29, the master very properly remarked that there would be a manifest advantage given to the purchaser by postponing the day for completion, if he were to have the crops exactly as if he had completed three months sooner, and yet escaped payment of the three months’ interest on the purchase money.
In Terry v. Wheeler the title had passed, and Sellen, J., made the remark quoted by plaintiffs’ counsel to show that in a case of that kind the risk as well as the increase attends upon the title and not upon the possession.
In Sheldon v. Sherman (42 Barb., 368) there was no contract of any kind, and the case was decided upon the principles of common justice. And, in Scrantom v. Booth (29 Id., 171), where the parties differed in their understanding as to the rent agreed between them, it was held that the tenant must pay what the premises were reasonably worth.
I cannot see how these two cases can be relied on as authority for the alteration of the plain 1 terms of a written contract executed by both parties, or the interpolation of an additional obligation into the contract not contemplated by the parties at the time of its execution.
In Messenger v. City of Buffalo (21 N. Y., 196) the city was held to have impliedly assented to the alteration of the contract, because by its action it had rendered the performance of the plaintiff’s contract impossible.
But what has the defendant in this case done so as to entitle the plaintiffs to an enlarged meaning of their contract %
In Allanison v. Mayor, &c. of Albany (43 Barb., 33, 1854), the question simply was whether a covenant in the plaintiffs’ contract “ that the' plaintiff will commence said work and will proceed therewith without delay, and in such a manner as not to delay the contractor for the mason-work,” imposed upon the defendants the obliga[384]*384tion to have the building in readiness for the plaintiff to perforin the condition, and the court held' that unless it did, it would be a contract merely on one side, with no corresponding obligation, no duty to be performed on the part of the other contracting party.
To the same effect is Churchward v. Reg. (1 C. L. Q. B., 173, 1865).
These cases merely decide that in some instances, where a contract would be void for want of mutuality, a correlative and corresponding obligation on the part of the other party will be implied, so far as it may become necessary for the purpose of sustaining the contract, but no more. But this doctrine cannot in any case be relied on as-a justification for the imposition of a new, distinct and additional obligation not embraced within the plain terms of a written contract, which has been executed by both parties and which clearly defines their mutual rights and obligations.
The foregoing examination of the cases cited and relied upon by the plaintiffs wholly failed to disclose a principle or theory upon which.the plaintiffs’ claims would be sustained. On the other hand, the cases of Decker v. Furniss (14 N. Y. [4 Kern.], 612), Kelly v. Upton (5 Duer, 336), and Spear v. Hart (3 Rob.,, 420), are such direct authority for the proposition that the contract in this case is executory only, that the title did not pass, no matter how the plaintiffs considered it; that the dividends and additional stock follow the title as recognized by the company ; and that consequently the plaintiffs, notwithstanding their agreement to pay interest, are not entitled to the dividends and additional stock claimed by them,—that the first three claims of the plaintiffs must be disallowed.
The fact that the plaintiffs, under their contract, made six deposits in the United States Trust Company, cannot make a,ny difference in this respect, for two reasons' :
First. Because the justice who tried the cause, found [385]*385as matter of fact that said deposits were made as security for the performance of the contract only ; and,
Second. Because, even if they had been made.as payments on account, as earnest money to bind the bargain, the contract would not have been changed thereby ; for the true legal effect of earnest money is simply to afford conclusive evidence that a bargain was actually completed with mutual intention that it should be binding on both contracting parties ; and the inquiry whether the title to the property has passed in such case is to be tested, not by the fact' that earnest was given, but by the true nature of the contract concluded by the giving of the earnest.
As to the fourth claim of the plaintiffs:
If the defendant is liable at all, he is so for the simple breach of the contract to deliver the stock, the vendees not having paid to him the purchase money in advance. The justice, at special term, has found, as matter of fact, that the six deposits made by the plaintiffs in the United States Trust Company, were made as security for the performance of the contract on their part, and this finding cannot be disturbed. The defendant had until December 31, 1867, including the whole of that day, for the performance of the contract on his part, and I do not see how he could make default so as to incur a liability to respond in damages, except upon a tender of the purchase money made by the plaintiffs after that day. No such tender has been made. But, as this point- ha-s neither been raised nor discussed, it may not be fair to decide the case upon this ground.
If, then, there has been any breach on the part of the defendant, it must have occurred, according to the evidence, either on December 19 or 31, 1867, and the measure of damages in such case is the difference between the contract price of the stock and the market price on the day of the breach, with interest from that day (Clark v. Pinney, 7 Cow., 681; Taylor v. Read, 7 Paige, 561; Dey v. Dox, 9 Wend., 129 ; Davis v. Shields, 24 Id., 322; [386]*386Beals v. Terry, 2 Sandf., 127 ; Dana v. Fiedler, 12 N. Y [2 Kern.], 40 ; Norton v. Wales, 1 Rob., 568).
The market value of the stock on these days, as proved, compares with the contract price as follows:
On December 19.
Contract price at 128, with interest thereon from
February 18, 1867, at six per cent........134f
Market value..................... 132¡
On December 31.
Contract price, with interest thereon from February
18, 1867, at six per cent............. 1341
Market value......."..............131®
This comparison shows that the market value of the stock on either of said days was less than the contract price, and consequently the plaintiffs, even if there was a breach by the defendant, sustained no actual damage.
The justice at special term was therefore right in holding that this rendered it unnecessary to consider whether there was such breach; and it follows that the exceptions taken and filed by the plaintiffs to the findings of said justice, as well as to his refusal' to find certain other facts, are, and every one of them is, clearly untenable.
The judgment appealed from should in all respects be affirmed, with costs.
Monell, J., concurred.