Gill, J. —
The plaintiff Deck brought this action to recover of defendant, Peld, the value of two shares of the capital stock of the “ Inter State Pair Association ” [677]*677of Kansas City, of the par value of one hundred dollars each — which said Deck alleged he sold and delivered to said Feld in January, 1886, and that said Feld agreed then and there to pay therefor what such stock was reasonably worth. Defendant denied the sale, admitted the transfer of the two shares of stock to him, but claimed that such stock was turned over to him, in payment for certain services in negotiating a sale of some of Deck’s real estate. The issues were submitted to a jury, under instructions from the court, and a verdict and judgment rendered for plaintiff in the sum of sixteen hundred dollars. Defendant thereupon appeals to this court.
I. The sole matters for our consideration here are: First, what rule should govern in fixing the quantum of plaintiff’s recovery- — since, on conflicting evidence, the jury found the fact to be, as alleged by plaintiff, that defendant in January, 1886, did purchase these two shares of stock, and that they were not taken by defendant, as he testified, in payment of commissions for selling plaintiff ’ s real estate — and, second, the rule, or measure, of damages being determined, was the finding of the jury supported by any evidence so that the court will not disturb the judgment.
Opposing counsel differ less as to the rules of law applying to the measure of damages in cases generally, than as to what rule is properly invoked here. All will agree to the general proposition: That, where an article is sold by A to B without stipulating a definite price, the law will imply a promise on the part of B, the vendee, to pay its then market value. This rule is based on the assumption, of course, that the property sold has a market value. Should the thing sold, however, be such as has, not been bartered and sold in the community, such as has no market value — then, as contended by plaintiff’s counsel, resort may be had to sources other than the market value to determine the extent of the vendor’s recovery.
[678]*678The holding in case of Simpkins v. Lowe, 54 N. Y. 179, illustrates the rule last announced. In that case, for the recovery of the conversion of the bonds of a California corporation, which had never been sold on the market, and therefore had no market value, it was permitted to show that, although the bonds were payable in paper money, yet that in California they were treated as payable in gold, and, gold being worth a premium, the bonds on that account were appreciated and might be estimated by that standard. So, too, in Murray v. Stanton, 99 Mass. 345, it was permitted a party seeking to recover the value of certain railroad bonds to show — in absence of any proof of value on the market, or rather in the presence of affirmative proof that there had been no sales, and therefore no market value — that such bonds were secured by a mortgage of the road, and that some forty miles of the same had been graded, etc., and was worth about the extent of the encumbrance.
If then Feld purchased Deck’s two shares of stock, and the same were delivered to Feld with no agreement as to the price to be paid, then the law imposes an obligation on said Feld to pay the value of such stock at that time, January, 1886, and that value should be fixed by the then customary or market price at the place of sale.
Plaintiff ’ s counsel contend that the evidence shows, indisputably, that there was no such market price, and therefore that resort may be had to an investigation of the assets and affairs of the fair association in order to determine a value. We cannot assent to this construction of the testimony. It is true that witnesses did so state, but there is in this record evidence tending to show a market value. Proof is not wanting to establish various sales of the stock about the date of the sale to Feld. For example — witness Bower, in September preceding the date of this transfer, took five shares at the rate of forty dollars per share, Wideman testified to a [679]*679sale of shares at one hundred dollars per share. Defendant Feld testified that the stock was of small value and that he had known of a few shares at twenty-five dollars to fifty dollars per share. Witness Ross testified to the effect that he “never heard of the fair association stock being below par,” that is one hundred dollars per share, while plaintiff Deck admitted making an offer of two shares in controversy to defendant Feld, a short time before the sale, at one hundred dollars per share. Witnesses Payne and Webster testified that about the date of the transfer of this stock to Feld (January, 1886), in their opinion the stock had no money value whatever, for the reason assigned by Mr. Webster (who was secretary and manager of the association), that the stock was paid no dividends, and that the theory of the old management then in control was that the association was more for the public good than that of individuals, and that the earnings were by common consent of the stockholders to be devoted to improvement of the grounds, and ultimately these grounds should be converted into a public park.
In order that this stock should have a market, value it was not necessary that it should be the subject of daily traffic, bought and sold on the streets, or in the frequent dealings of tradespeople. It was enough if it was occasionally a subject of sale or exchange in the comlnunity, so as to fix upon the same at different times a customary ■ price. It is the knowledge of actual transactions, or sales of a commodity, that qualifies a witness to testify to a market value. 2 Sutherland on Damages, p. 376 et seq. We have here submitted to the jury, in trying this case, a succession of actual transactions, all tending to inform them as to the customary value put on these shares of stock. We are of the opinion then that this is not one of those cases where there is no market value, and where the affairs of the corporation must needs be investigated to determine the [680]*680value of its shares of stock. Plaintiff’s instruction numbered one, therefore, was erroneously, given, since it failed to confine the jury, in the measure of recovery, to the market of the stock at the time of the sale to Feld.
II. But again, even admitting this a proper case, for the application of the rule contended for by plaintiff ’s counsel, we should still feel impelled to reverse this case for the reason, seldom applied in this court, that the verdict is unsupported by any evidence in that tbe jury found these shares of stock to have been worth, in January, 1886, the sum of eight hundred dollars each when there is no evidence even tending to prove such value. It seems clear that the jury determined the value of this stock by the showing made of the condition of the association and the advanced price of its land in the fall of the year of 1887, more than a yéar subsequent to the sale of the two shares of stock in controversy.
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Gill, J. —
The plaintiff Deck brought this action to recover of defendant, Peld, the value of two shares of the capital stock of the “ Inter State Pair Association ” [677]*677of Kansas City, of the par value of one hundred dollars each — which said Deck alleged he sold and delivered to said Feld in January, 1886, and that said Feld agreed then and there to pay therefor what such stock was reasonably worth. Defendant denied the sale, admitted the transfer of the two shares of stock to him, but claimed that such stock was turned over to him, in payment for certain services in negotiating a sale of some of Deck’s real estate. The issues were submitted to a jury, under instructions from the court, and a verdict and judgment rendered for plaintiff in the sum of sixteen hundred dollars. Defendant thereupon appeals to this court.
I. The sole matters for our consideration here are: First, what rule should govern in fixing the quantum of plaintiff’s recovery- — since, on conflicting evidence, the jury found the fact to be, as alleged by plaintiff, that defendant in January, 1886, did purchase these two shares of stock, and that they were not taken by defendant, as he testified, in payment of commissions for selling plaintiff ’ s real estate — and, second, the rule, or measure, of damages being determined, was the finding of the jury supported by any evidence so that the court will not disturb the judgment.
Opposing counsel differ less as to the rules of law applying to the measure of damages in cases generally, than as to what rule is properly invoked here. All will agree to the general proposition: That, where an article is sold by A to B without stipulating a definite price, the law will imply a promise on the part of B, the vendee, to pay its then market value. This rule is based on the assumption, of course, that the property sold has a market value. Should the thing sold, however, be such as has, not been bartered and sold in the community, such as has no market value — then, as contended by plaintiff’s counsel, resort may be had to sources other than the market value to determine the extent of the vendor’s recovery.
[678]*678The holding in case of Simpkins v. Lowe, 54 N. Y. 179, illustrates the rule last announced. In that case, for the recovery of the conversion of the bonds of a California corporation, which had never been sold on the market, and therefore had no market value, it was permitted to show that, although the bonds were payable in paper money, yet that in California they were treated as payable in gold, and, gold being worth a premium, the bonds on that account were appreciated and might be estimated by that standard. So, too, in Murray v. Stanton, 99 Mass. 345, it was permitted a party seeking to recover the value of certain railroad bonds to show — in absence of any proof of value on the market, or rather in the presence of affirmative proof that there had been no sales, and therefore no market value — that such bonds were secured by a mortgage of the road, and that some forty miles of the same had been graded, etc., and was worth about the extent of the encumbrance.
If then Feld purchased Deck’s two shares of stock, and the same were delivered to Feld with no agreement as to the price to be paid, then the law imposes an obligation on said Feld to pay the value of such stock at that time, January, 1886, and that value should be fixed by the then customary or market price at the place of sale.
Plaintiff ’ s counsel contend that the evidence shows, indisputably, that there was no such market price, and therefore that resort may be had to an investigation of the assets and affairs of the fair association in order to determine a value. We cannot assent to this construction of the testimony. It is true that witnesses did so state, but there is in this record evidence tending to show a market value. Proof is not wanting to establish various sales of the stock about the date of the sale to Feld. For example — witness Bower, in September preceding the date of this transfer, took five shares at the rate of forty dollars per share, Wideman testified to a [679]*679sale of shares at one hundred dollars per share. Defendant Feld testified that the stock was of small value and that he had known of a few shares at twenty-five dollars to fifty dollars per share. Witness Ross testified to the effect that he “never heard of the fair association stock being below par,” that is one hundred dollars per share, while plaintiff Deck admitted making an offer of two shares in controversy to defendant Feld, a short time before the sale, at one hundred dollars per share. Witnesses Payne and Webster testified that about the date of the transfer of this stock to Feld (January, 1886), in their opinion the stock had no money value whatever, for the reason assigned by Mr. Webster (who was secretary and manager of the association), that the stock was paid no dividends, and that the theory of the old management then in control was that the association was more for the public good than that of individuals, and that the earnings were by common consent of the stockholders to be devoted to improvement of the grounds, and ultimately these grounds should be converted into a public park.
In order that this stock should have a market, value it was not necessary that it should be the subject of daily traffic, bought and sold on the streets, or in the frequent dealings of tradespeople. It was enough if it was occasionally a subject of sale or exchange in the comlnunity, so as to fix upon the same at different times a customary ■ price. It is the knowledge of actual transactions, or sales of a commodity, that qualifies a witness to testify to a market value. 2 Sutherland on Damages, p. 376 et seq. We have here submitted to the jury, in trying this case, a succession of actual transactions, all tending to inform them as to the customary value put on these shares of stock. We are of the opinion then that this is not one of those cases where there is no market value, and where the affairs of the corporation must needs be investigated to determine the [680]*680value of its shares of stock. Plaintiff’s instruction numbered one, therefore, was erroneously, given, since it failed to confine the jury, in the measure of recovery, to the market of the stock at the time of the sale to Feld.
II. But again, even admitting this a proper case, for the application of the rule contended for by plaintiff ’s counsel, we should still feel impelled to reverse this case for the reason, seldom applied in this court, that the verdict is unsupported by any evidence in that tbe jury found these shares of stock to have been worth, in January, 1886, the sum of eight hundred dollars each when there is no evidence even tending to prove such value. It seems clear that the jury determined the value of this stock by the showing made of the condition of the association and the advanced price of its land in the fall of the year of 1887, more than a yéar subsequent to the sale of the two shares of stock in controversy. The evidence shows that in January, 1886, the date of sale of Beck to Feld, the conditions were these : The affairs of the association were in the keeping of a directory and management who regarded its property more as a matter of public concern than of private interest, who thought to continue the enterprise as a public institution paying no dividends, and in the end to turn the fair grounds, into a park for the public use, and hence it was that witnesses thought in view of this the stock had, in January, 1886, no pecuniary value, was worthless. But the evidence shows that a new directory, a new management, came into power in the beginning of the year 1887, whose declared policy was a dissolution of the fair corporation, the sale of Its valuable lands, and winding up its affairs, with distribution of the assets, after payment of the debts, to the various stockholders.
This change of policy, which occurred more than a year after the sale of the two shares in January, 1886, immediately imparted to the shares of stock a largely increased pecuniary value, since now they were to share [681]*681in the proceeds of a valuable distribution. The highest pr ce of these shares, testified to by any witness, even as-late as eighteen months after the sale in controversy, was the sale of witness Bower of his five shares in June, 1887, and that was at the rate of three hundred and fifty dollars per share. Yet the jury in the trial of this cause, when fixing a value for January, 1886, assessed the shares of stock at eight hundred dollars each. It was the situation attending the sale in January, 1886, that should have been regarded by the jury when they came to assess the value of the stock which Feld had bought. It was the value at the time and place of sale not the value at some future time, when the conditions were so different. 2 Sutherland on Damages, 349.
We think then that the verdict, in so far as it found the value of tire two shares of stock, in January, 1886, to be sixteen hundred dollars, is wholly without evidence in its support, and for that reason also this judgment must be reversed.
Judgment reversed and cause remanded for a new trial.
All concur.