Pinkerton v. Manchester & Lawrence Railroad

42 N.H. 424

• Court: Supreme Court of New Hampshire
• Decided: June 15, 1861
• Status: Published

Opinion

Bellows, J.

This is an action of assumpsit, for refusing, on demand, to give to the plaintiff a certificate of twenty-nine shares of the stock of the Manchester and Lawrence Bailroad, and to pay him the dividends on the same stock.

It appeared that on the eighth day of July, 1854, one Holbrook owned ninety-six shares of that stock, and then transferred them, by indorsement on the back of the certificate, to the Granite Bank, Boston, of which he was president, as collateral security for his debts to that bank, amounting to over $100,000. The certificates were at the same time delivered to the bank, where they remained without any entry of a transfer on the books of the railroad, until the 3d day of the ensuing August, at a little past two o’clock in the afternoon, when they were delivered by Holbrook to Moses J. Mandell, who entered the transfer in a book kept by him as transfer agent, at the office of Brown & Sons, in Boston, of which firm said Mandell was a member, and the certificates were surrendered by the bank to Mandell, and new ones issued by him for tfie same stock, to the bank, he being furnished with blank certificates, signed by the president and treasurer, for such purposes; and by the earliest conveyance Mandell sent the old certificates, with notice of the transfer, to the office of the railroad, at Manchester, which was received there at about eight o’clock in the afternoon of the same 3d day of August; and afterward, in September, 1857, a corresponding entry of the transfer was made in the proper books at that office, as of the date of September, 1857.

It also appeared that the treasurer of the railroad corporation, by vote, in June, 1852, was authorized to appoint a transfer agent in Boston, and that on said 3d day of August, and for some time after, said Mandell was acting as such transfer agent, and was furnished by the corporation with books to be used for that purpose, and with blank certificates, signed by the proper officers of the corporation, and to be filled up and used by him in the course of his business as such agent; and it appeared, also, that what said Mandell did, in issuing new certificates, and sending notice to the office, at Manchester, and entering the transfer on the books kept by him, was in the regular course of his business as such transfer agent, and that the plaintiff was aware of this course of business, and that said Mandell acted as such agent.

It further appeared that on said 3d day of August the plaintiff, a little before noon, went to Mandell’s said place of business, to ascertain if Holbrook had transferred his stock, and finding that no transfer had been entered there, he went to Manchester, procured a writ upon a note he held against said Holbrook, and attached his stock in said corporation at eight minutes before 5 o’clock in the afternoon of said August 3, and without any knowledge, in him or the officer serving the writ, of any assignment of the stock. Judgment was obtained in that suit, and twenty-nine shares of that stock sold to the plaintiff to satisfy it, on the 12th day of July, 1856; the lien acquired by the original attachment having been preserved.

The question now is, whether the assignment to the Granite Bank was good against the attaching creditor. To the regularity of the proceedings upon the attachment and sale upon execution, there is no exception; nor is there any objection to the existence of a bond fide debt to the Granite Bank; but the only question is, whether the transfer was so'far completed as to be valid against an attaching creditor. There is nothing, either in the charter or by-laws of the corporation, to prescribe or regulate the mode of making a transfer, but it is contended by the plan .tiff’s counsel that, until it is entered or recorded in the stock books of the corporation kept in this state, the transfer is not valid as against an attaching creditor. And the argument is put upon two grounds :

1. That, by force of the various statutes upon the subject of the evidence of ownership of stock, and the keeping of the records, and the residence of the officers, and their duties, such entry or record is necessary to a valid transfer:

2. That, to constitute a complete delivery of the stock, such entry and record are necessary, as the natural and recognized indicia of ownership ; and that, without such entry, the stock must be deemed to be still in possession of the assignor ; which implies a secret trust, and is, therefore, in the judgment of the law, fraudulent and void as to creditors.

In regard to the second ground taken by the plaintiff’s counsel, namely, that without such entry or record the possession of the stock can not be deemed to have been changed, it is alleged, in answer by the counsel for the defendant, that the entry or record in the books of the transfer agency was sufficient, and the same as if entered in the hooks at Manchester; and it is also suggested that all the possession was given that the nature of the property was capable of, as in case of the sale of goods at sea; and it appears that, by the earliest conveyance after the old certificates were surrendered, the new one was sent to the office at Manchester, with notice of the transfer. Had this been done immediately upon the pledge, and the transfer recorded in the books at Manchester, a question might have arisen whether the possession was not perfected without unreasonable delay, and so as to prevail against an intervening attachment, as in Ricker v. Cross, 5 N. H. 570; and in the case of the sale of a ship in a distant port, as in Putnam v. Dutch, 8 Mass. 287; Portland Bank v. Stacy, 4 Mass. 661; or abroad, or at sea, as in the cases cited in Ricker v. Cross; and as in Conard v. Atlantic Ins. Co., 1 Pet. 384-449, and Joy v. Sears, 9 Pick. 4, and Buffinton v. Curtis, 15 Mass. 528, and 1 Smith’s L. C. 76. In this class of cases it may be said that the want of delivery at the time is explained within the principle of Coburn v. Pickering, 3 N. H. 415, upon the ground that such delivery was impossible, and therefore the presumption of fraud is repelled. See Gardner v. Howland, 2 Pick. 599, and Peters v. Ballister, 3 Pick. 495. On this ground a similar doctrine has been held in the case of the sale of a slave too sick to be removed at the moment.

But, in the case before us, this question does not arise, because the assignment was made on the 8th day of July, and nothing sent to the office until the 3d of August; and this, we think, could not be regarded as using due diligence to perfect the assignment, if such entry and record were necessary. Nor do we think that books of the transfer agent in Boston can be regarded as the records or accounts of the shares or interests of the corporators, contemplated by the several statutes, in providing for the means of taxing the' shareholders, enforcing their private liability, or for giving creditors the - necessary information to enable them to attach or levy upon the stock. On the contrary, we think it quite clear th'at the law contemplates the keeping a record of the ownership of the stock in the state, and by an officer resident here, and competent to certify the same.

The law of 1850 (Laws of 1850, ch. 953, sec. 9; Comp. Stat., eh. 150, sec. 67) provides, that the treasurer and clerk of railroad corporations shall reside in this state, except where the railroad is part of one created by the acts of two or more states ; and this provision is not affected by the fact that the payment of dividends to stockholders is provided for at the place of business of the corporation in this state. The section provides “ that the clerk and treasurer shall reside within this state, and all the books, papers and funds of said corporation, with the foregoing exception (that is, in case of a road in two states), shall be kept therein, or shall provide for the payment of all dividends to the stockholders in this state at the place of business of the corporation in this state.”

This alternative provision, we think, is designed as a substitute for the keeping of funds for the payment of dividends, and the books and papers connected therewith in this state, and is not to be construed to dispense with the necessity of keeping a record or account of the stock in this state, or of the residence here of the clerk or treasurer.

By the Revised Statutes (ch. 146, sec. 13), prior to the act in question, no person could be eligible to the office of clerk of any corporation, unless he was an inhabitant of the state ; and it is quite clear, from the whole course of the legislation prior to this law of 1850, that the keeping of the records or accounts of the shares or interests of the corporators, by the treasurer or other officer in this state, has been steadily contemplated by the legislature. This is manifest by the law requiring the clerk of the corporation to return a list of the stockholders to the town-clerk, under a penalty of fifty dollars ; Comp. Stat., ch. 147, secs. 8-12; the provisions for the attachment of stock, by leaving a copy of the writ and return with the clerk, treasurer or cashier; the provision requiring the officer having the care of the records of stock to exhibit, on demand, to the officer making such attachment, a certificate of the number of shares owned by the debtor, and to exhibit to him such records and documents as may be useful to the officer in discharging his duty, and subjecting him to a penalty and damages for neglect; Comp. Stat., ch. 207, secs. 16-21. So, in relation to manufacturing corporations, it is provided that, if the treasurer does not reside within this state, the stock record shall be kept within this state by the clerk.

"With these provisions and this policy in view, it will hardly be conteuded that the alternative provision, in regard to the payment of dividends in this state, is to be regarded as a substitute for the residence of the clerk and treasurer, and the keeping of the stock record in this state; for it is quite obvious that such provision for the payment of dividends can, in no aspect of the case, be regarded as a substitute for keeping the stock record here, and in the hands of a certifying officer of the corporation. To authorize a construction that would make this alternative provision a substitute for all the rest, would require language much more explicit than we find there. If^ then, an entry of the transfer in the books of the corporation be necessary to a valid transfer as against this plaintiff, we hold that it must be done in the books kept in this state.

The question, then, is whether such entry is necessary. In this case both the plaintiff and the Granite Bank were creditors of Holbrook, the former owner of the stock, and both claim under him ; one by sale on execution, and the other by voluntary transfer from the debtor. By the law of New-Hampshire, as it has existed ever since 1812, stock in all corporations is subject to attachment and execution ; and the question is, whether the transfer was so far perfected as to be valid agrinst the plaintiff’s attachment. In deciding this question it is not material to determine the precise character ot this property, whether such stocks be regarded as choses in action or not; because we are satisfied that it comes within the provisions of the statute of 13 Eliz., ch. 5, even if regarded as choses in action. The terms used in that statute, in respect to personal property, are “goods and chattels,” but they are construed to embrace things in action as well as in possession. 2 Bl. Com. 384, note 1; Ford § Sheldon’s Case, 12 Co. 1, applying to an act of Parliament; Ryal v. Rowles, 1 Atk. 164, 182, and same ease in 1 Ves. 348, 363, 366, 367, 369, 371. This case involved the construction of the terms “goods and chattels” in the statute of 21 James I., relating to conveyances by persons afterward becoming bankrupt; and it was held that they included a conveyance of a share in a trading concern by one of the partners ; and it was expressly held that these terms in an act of Parliament would include choses in action. And such, we think, has been the doctrine of the courts in this state, as shown in cases of foreign attachment and otherwise. Hutchins v. Sprague, 4 N. H. 469; Giddings v. Coleman, 12 N. H. 153; Langley v. Berry, 14 N. H. 82; Newman v. Bagley, 16 Pick. 570; Richmondville Company v. Pratt, 9 Cow. 487.

The claim of the Granite Bank arises from what'must be regarded as a, pledge; and to be valid, a delivery is essential, at least as against creditors. To constitute such delivery, the assignee should be clothed with the usual marks and indications of ownership. In the case of things in possession, there should be a manual delivery and change of possession, or its equivalent. In the case of things in action, the usual muniments of title should be conferred upon the assignee. As to the former, it is held that if the articles are bulky, the delivery of the key of the warehouse in which they are deposited will suffice. Ryal v. Rowles, 1 Ves. 362. See Patten v. Smith, 5 Conn. 200. So in case of the sale of goods at sea, a transfer of the bill of lading, by indorsement, is, by the commercial law, valid as to' creditors. Caldwell v. Ball, 1 T. R. 205-211; Conrad v. Atlantic Ins. Co., 1 Peters 444, and eases cited. Lanfear v. Sumner, 17 Mass. 112. A bill of lading is an acknowledgment, under the hand of the captain, that he has received the goods, and will deliver them to the person named therein, and, by the well settled principles of the commercial law, is assignable by indorsement; and this is equivalent to the actual delivery of the goods. Such transfer is the ordinary and appropriate mode of selling goods at sea; and it was held in Caldwell v. Ball, 1 T. R. 205-215, that when two bills of lading were signed by the same captain, the person to whom one was first transferred would hold the goods. So where the goods sold are in the custody of another, and an order is given to the depositary to deliver them to the buyer, which is presented to him; there the sale is complete. Plymouth Bank v. Bank of Norfolk, 10 Pick. 459; Tuxworth v. Moore, 9 Pick. 348. In the case of real estate mortgaged, where the title deeds are left with the mortgagor, who makes a second mortgage and delivers the title deeds, the first will, in equity, be postponed to the second. Ryal v. Rowles, 1 Ves. 360.

In ‘regard to the assignment of dioses in action, as a bond or promissory note, a delivery is essential as against a subsequent assignee, or, probably, a creditor. Ryal v. Rowles, 1 Ves. 348, 362, Burnet, J.; Parker, Baron, 366. As to goods and chattels in possession, a substantial change of possession is, by our law, essential, when it can be had. The want of it, unexplained, is conclusive evidence of a secret trust, and shows the sale to be fraudulent as to creditors. In the case of stocks, the natural and appropriate indication of ownership is the entry upon the stock record. This is indicated by the ordinary course of dealing in such property, and has been assumed in our legislation for many years; and it is manifested in the provisions in regard to returns of stock, by the clerks or •treasurers, for the purposes of taxation, private liability and attachment; all of which assume that the records will show the ownership of the stock, and some of which continue the individual liability so long as the returns borne upon such record remain unchanged. In respect to manufacturing corporations, by express provisions a a transfer of stock avails nothing against an attachment until entered upon the corporation records. So, too, such record is expressly recognized as essential in the certifb cates and in the transfer of the stock in question.

Until, then, the transfer is recorded, or is entered for record, we think there has heen no such change of possession as will prevail against an attaching creditor, unless in cases, as before suggested, where due diligence has been used to make such record! and the attachment has intervened. We are aware that dioses in action may be transferred by a simple delivery of the evidence of indebtedness, with an indorsement thereon, in certain cases; but it will be observed that, in these cases, all such changes in the indications of ownership as the nature of the case will admit, are required. If, therefore, upon the transfer of a bond or bill of exchange, it be retained by the assignor, a subsequent purchaser, without notice, would acquire a good title. Indeed, it may be laid down as a general principle governing the transfer of every species of personal property, that, to be good against innocent third persons, such transfer must be accompanied with such change of possession and indications of ownership as the nature of the thing is capable of; otherwise the seller is enabled, by means of an apparent ownership, to obtain a fictitious credit, and to deceive both creditors and purchasers. To avoid such consequences the law has always watched such conveyances with extreme solicitude. In this respect we see no distinction between things in action and things in possession; but, for aught that we can see, the same general rules must apply to both.

It is true that, at common law, choses in action were not the subject of attachment or execution, except by the custom of London, and there only when the garnishee lived in the city, and the debt arose there. Com. Dig., Attachment, A. D. Nor did it extend to stocks in the East India Company. But now, by the laws of New-Hampshire of no distant date, choses in action are made the subject of foreign attachment; and stock in corporations may now be attached specifically, like things in possession. Under these circumstances, and in view of the rapid increase and the vast amount of such property, it becomes extremely material to make a correct application, to this species of property, of the principles which regulate the transfer of other kinds of property.

In the case before us, the stock was pledged to the Granite Bank on the 8th day of July, 1854, as collateral security for the owner’s indebtedness, by a delivery of the certificates, indorsed by him, to the bank of which he was then president; and nothing further was done toward taking possession of the stock until the third day of the following August, when the old certificates were surrendered to the transfer agent, and new ones received by the bank. The act of transfer by Holbrook must be regarded as done on the 8th of July,-and whatever was done afterward was the act of the hank; and the question is, whether due diligence was used by the bank in taking possession of the stock. It may be answered that, as the transfer was made at a distance from the place where the stock records were kept, a reasonable time should be allowed, to communicate with the officer; but the case finds nothing, and nothing is suggested, that could justify a jury in finding that the entry was made in a reasonable time after the act of transfer. There is no suggestion that the communication was made at the earliest convenient opportunity after the transfer on the 8th of July; and if there was a daily mail communication with Manchester, there could be no ground to claim that due diligence was used. Nor could the exchange of certificates, at the transfer agency, be regarded as equivalent to a record, or the entry for that purpose in the office at Manchester. If forwarded by the transfer agent and recorded, it then would be perfected ; but we are unable to regal’d the act of the transfer agent, in respect to the record, as any thing more than the act of a mere agent of the bank. To give to the notice and entry at the transfer agency the effect of a record or entry upon the stock book of the corporation, would, as we think, be contrary to the policy of the law, which requires, as the chief evidence of ownership, the record or entry in the books of the corporation kept in this state. Such a rule is simple and easy of application, and is demanded for the convenience of the corporation, and the interests of the stockholders and their creditors. The transfer agent is in no sense the keeper of the stock record, and notice to him is not notice to the keeper of that record.

This case, then, is one where due diligence was not used to take possession of the stock; but, in respect to the creditors of Holbrook, it was, for nearly one month, left in his possession, he retaining, as before, the usual indications of ownership, such as membership of the corporation, and a right to vote on the stock, his pi’ivate liability for debts, and his liability to be taxed, and being, indeed, for all purposes, the ostensible owner of the stock. Indeed, the retaining these evidences of ownership, in the case of an absolute sale of the stock, or any transfer which implies a delivery, would be no less inconsistent and no less indicative of a trust than the retaining possession of goods, capable of manual delivery, upon an absolute sale. If there be any substantial difference, the inconsistency would be more marked in the case of the stock, inasmuch as in the case of goods and chattels, which are tangible, it is often convenient to disconnect the use from the ownership for a time. And we are inclined to think the retention of the possession of goods which are tangible would be less likely to mislead creditors and purchasers, than the omission to make the proper entry in the stock record, on the transfer of stocks. Indeed, such a neglect to perfect the transfer of stock as this case discloses, could hardly fail to excite suspicions as to the existence of a fixed intention to perfect the transfer at all, at the time it was made. "Whatever the fact may be in this case, it is quite apparent that, if such transfers are held good as against creditors, it would open a wide door for the mischiefs which are denounced by the statute of 13 Eliz.; especially would it be so in these times, when so large a portion of all the property of the country is in corporation stocks. It is to be observed, also, that this transfer affords no information as to the amount for which it is pledged, or for what; and it might deserve very grave consideration whether a transfer, valid as against creditors, of attachable property, can be so made. But it is not necessary to consider this question now, nor do we inquire whether there existed an actual fraudulent intent or not.

We are brought to the conclusion that the possession of the stock was not changed, and that no satisfactory explanation of it is given; and that, therefore, there is shown a secret trast, which avoids the transfer as to this plaintiff. The conclusion we have reached, on this point, renders it unnecessary to consider the other.

The only question-remaining is, as to the measure of damages. The general rule here and elsewhere is, that in an action on a contract to deliver goods, stocks, and other personal property, the measure of damages is the value of the property at the time and place of delivery. But a distinction has been made in some jurisdictions, by which, where the price has been paid in advance, the plaintiff has been allowed to elect the value at the time when the property ought to have been delivered, or at the time of trial, or, as some cases hold, the value at any intermediate period. Such a distinction has been recognized in England, in New-York, and in the courts of some other states in the union, upon the ground that the seller, having got the money of the plaintiff, the latter may be deprived of the means, by the seller’s act, of going into the market and purchasing the same property at the then market prices. In Shepard v. Johnson, 2 East 210, it was held in an action for not replacing stock loaned, at the time appointed, it having afterward risen, that the measure of damages was the value at the time of trial. This doctrine, and the reason for it, was recognized in Gunning v. Williamson, 1 C. & P. 625, which was an action of trover for East India warrants, for cotton, which had risen after the conversion. So in Gainsford v. Carroll, 2 B. & C. 624; McArthur v. Lord Seaforth, 2 Taunt. 257; Payne v. Breck, 2 East 218, note to Shepard v. Johnson. In Downs v. Back, 1 Stark. 318, it was held that the plaintiff might estimate his damages at the value of the stock at the time of trial. In Harrison v. Harrison, 1 C. & P. 412, on a bond to replace stock, it was held that the value, at the time of trial, was the measure of damages. These cases go upon the ground that a judgment for damages equal to the market value at the time of such judgment, would enable the plaintiff to purchase similar property, and thus operate like a decree for specific performance of the contract.

Mr. Starkie, in his work on evidence, 3 Stark. 1624, lays it down that the damages may be the value at the time of delivery, or the time of trial, “ or, as it seems, on any intermediate daybut he cites against the rule McArthur v. Lord Seaforth, 2 Taunt. 257. In 3 Phill. Ev. 103, it is said that the plaintiff may elect the value at the time of delivery, or the time of trial, but not, as it seems, upon any intermediate day; and see 1 Saund. Pl. & Ev. 377 and 677; Chitt. on Con. 393, note 2 by Perkins. In Dutch v. Warren, which is stated in Moses v. Macferlan, 2 Burr. 1010, where there was a contract to deliver stock, the price being paid in advance; held, that the value, at the time of the breach, was the measure of damages, though less than the sum paid. So, where on a loan of stock to be replaced at a certain day; held, that the measure of damages was the value on that day. Sanders v. Kentish & Hawkesly, 8 T. R. 162.

In West v. Wentworth, 3 Cow. 82, it was held that for the breach of a contract to deliver salt, the price having been paid in advance, the measure of damages was the highest market price between the time the salt was due and the time of trial; and the cases cited to sustain the decision are Cortelyou v. Lansing, 2 Caines’ Cas. Err. 216, and Shepard v. Johnson, 2 East 211, neither of which goes to that extent. The case of Clark v. Pinney, 7 Cow. 681, decided by the same Judge Sutherland, takes the same ground, after a review of the English cases; and these decisions have been followed by the courts of some other states, as in Bank of Montgomery v. Reese, 26 Penn. 143; which was an action against the plaintiff in error, for wrongfully refusing to allow the defendant in error to subscribe for and receive certain stock in tbe bank. Tbe court fully recognizes the rule laid down in West v. Wentworth and Clark v. Pinney, as applicable to stocks; but suggests a different rule in respect to articles which are unlimited in production. The court hold, however, that it is immaterial whether the stock has been paid for or not, but that the rule is the same in either case; and the court cites Cud v. Rutter, 1 P. Wm. 570 and note, which holds the same doctrine, as it would seem, where the price was not paid in advance, and citing also Vaughan v. Ward, 1 Mylne & Keen 403. In West v. Pritchard, 19 Conn. 212, it was held that the plaintiff was entitled to the value at the time of trial, or at the time appointed for the delivery ; and that this rule applies to other personal property as well as stocks; although in Wells v. Abernethy, 5 Conn. 227, Hosmer, C. <J., had expressed a strong repugnance to the doctrine. Brandon v. Barlow, 4 Tex. 289, and Calvit v. McFadden, 13 Tex. 324, accord with West v. Pritchard, in giving the value at the time of trial. In Shepard v. Hampton, 3 Wheat. 200, is a dictum of Marshall, C. J., to the effect, simply, tl^at he should think the value at the time of delivery would not be the rule where the price was paid in advance, but he does not state what it should be.

On the other hand, the case of Startup v. Cortuzzee, 2 Cr. M. & R. 165, is in opposition to. the dicta in Gainsford v. Carroll, and to Clark v. Pinney and West v. Wentworth. In that case, which was an action for not delivering a cargo of linseed, according to a contract of sale, on which the plaintiff had advanced a moiety of the price, Lord Abinger charged the jury that the plaintiff was not entitled to damages according to the value at the time of trial, and that it was not like a suit for not replacing stock; and this was sustained, on motion for a new trial, by the whole court, there being no evidence that the plaintiff had in fact sustained any special damage. See a statement of this case in Suydam v. Jenkins, 3 Sandf. 641, where Duer, J., reviews the cases, and holds, in opposition to West v. Wentworth and Clark v. Pinney, that the highest intermediate price ought never to be taken as the rule of damages, either in trover or assumpsit, unless it be shown that the plaintiff would have realized that price had the contract been performed. This case (commencing on page 614) is an elaborate review of the cases, and the court hold that the rule of damages must be the same in trespass, trover, replevin or assumpsit. Chancellor Kent (2 Cow. 648, note) says he does not regard the distinction, as to the rule of damages arising from the payment of the price in advance or not, as well founded or supported; and he says that the value at the time of the breach is a plain, stable and just rule; and so it seems is the conclusion in Sedgwick on Damages, 260, 280, 277, after a review of the cases, and see the cases in 2 Kent’s Com. 648, note. In Gray v. Portland Bank, 3 Mass. 364, 390, it was held that the value of the stock, at the time of delivery, and not on the day of trial, was the true measure of damages; and the case of Shepard v. Johnson, 2 East 211, is expressly overruled. Sedgwick, J., says this rule has been long established and invariably adhered to in Massachusetts. The same rule was applied in Kennedy v. Whitwell, 4 Pick. 466, which was trovei’, and, after the conversion, the defendant sold the goods for a greater price; but it was held that the value at the time of the conversion was the measure of damages; and so in Sergeant v. Franklin Ins. Co., 8 Pick. 90, it was held that the value of the stock, at the time it should have been transferred, was the rule, and the court adopt the doctrine of Gray v. Portland Bank and Kennedy v. Whitwell, and consider this case as standing on the same ground as the conversion of goods; and so is Henry v. Manufacturers and Mechanics' Bank, 10 Pick. 415; where certificates of stock were withheld.

In replevin, the value of the property when it ought to have been restored, is the true measure of damages. Swift v. Barnes, 16 Pick. 194, 196. In Smith v. Dunlop, 12 Ill. 184, which, was much considered, and the English and New-York cases examined, the rule in Massachusetts is sustained. In Hopkins v. Lee, 6 Wheat. 106, it was held that the value of the land when it ought to have been conveyed, which was when it was paid for, was the measure of damages. So in Cox v. Henry, 32 Penn. 18, which was a contract to convey real estate, .the price having been paid in advance, it was held that the value at the time it should have been conveyed is the measure of damages.

In Mitchell v. Gile, 12 N. H. 390, it was said that the value at the time of the breach is the measure of damages. But this is laid down as a general proposition, and the distinction arising from previous payment is not adverted to. Nor do we find such a distinction recognized in any New-Hampshire case. See, also, Stevens v. Lyford, 7 N. H. 360.

There being, then, much conflict in the authorities, the question is to be settled upon principle; and it may be assumed that the plaintiff is entitled to such damages as will be a full indemnity for withholding the stock. The general rule is, undoubtedly, that he shall have the value of the property at the time of the breach; and this is a plain and just rule and easy of application, and we are unable to yield to the reasons assigned for the exception which has been sanctioned in New-York and elsewhere. It is true that, in some cases, the plaintiff may have been injured to the extent of the value of the property at the highest market price between the breach and the time of trial. But it is equally true that, in a large number of cases, and, perhaps, generally, it would not be so. In that large class of cases where the articles to be delivered entered into the common consumption of the country, in the shape of provisions, perishable or otherwise, horses, cattle, raw material, such as wool, cotton, hides, leather, dye stuffs, &c., to hold that the plaintiff might elect, as the rule of damages in all cases, the highest market price between the time fixed for the delivery and the day of trial, which is often many years after the breach, would, in many cases, be grossly unjust, and give to the plaintiff an amount of damages disproportioned to the injury. For, in most of these cases, had the articles been delivered according to the contract, they would have been sold or consumed within the year, and no probability of reaping any benefit from the future increase of prices. So there may be repeated «trials of the same cause, by review, new trial, or otherwise. Shall there be a different measure of value at each trial ? In the case of stocks, in regard to which the rule in England- originated, there are, doubtless, cases, and a great many, where they are purchased as a permanent investment, and to be held without regard to fluctuations; and to hold that the damages should be the highest price between the breach and trial, when there is no reason to suppose that a sale would have been made at that precise time, would also be unjust. But it may be ¡ fairly assumed that a very large portion of the stocks purchased are purchased to be sold soon; and to give the '[ purchaser, in case of a failure to deliver such stock, the right to elect their value at any time before the trial, which might often be several years, would be giving him not indemnity merely, but a power, in many instances, of unjust extortion, which no court could contemplate without pain.

In view of such results, the courts in England and NewYorkhave been inclined to shrink from the application of that rule, in many cases ; and it has been held that it would not be applied where the action was not brought in a reasonable time; and this, undoubtedly, because of the injustice of allowing the plaintiff to take advantage of the fluctuations of many years. But even if brought in a reasonable time, and what is a reasonable time is not easy to say, there might be often, a lapse of many years before a final trial. In actions of trover, trespass and replevin, there would be stronger reasons for the application of such a distinction than in cases of contract; inasmuch as the plaintiff1 is not only deprived of the use of his property, and the means to replace it from the avails, but is so deprived by the tort of the defendant. If, then, the rule is just, it should be applied in these actions, the form of the action not being material in this respect; and in jurisdictions where this doctrine is recognized it has been so applied; as in Wilson v. Matthews, 24 Barb. 295, and Gunning v. Wilkinson, 1 C. & P. 625, which was trover for East Indian wai’rants for cottoxx. In Wilson v. Matthews, the highest market price between the breach and the day of trial was held to be the rule.

In this state no such rule has been adopted, and it requires no citation of authorities to show that, as applied to actions of trespass, trover or replevin, it would find no countenance here.

The same reasons which oppose the right of electing the value at any intermediate day, as the rule of damages, apply also to axx election between the time of the breach and the time of the trial; and we are disposed to hold the value at the time of the breach, or when the articles ought to have been delivered, as the just and convenient rule.

In accordance with our views is the case of Wyman v. American Powder Works, 8 Cush. 164. In that ease, the corporation refused to give the plaintiff a certificate of shax’es to which he was entitled, or to recognize him as owner, but sold them to another; and it was decided that the defendant was liable for the value of the shares at the time of the demand, and interest from that time; and with this decision we are satisfied.

In this case, therefore, after reducing the amount to accord with these views, there should be

Judgment on the verdict.