Opinion
January 24, 1908.
Joseph M. Hartfield, for the plaintiff.
Eliot Norton [ Alexander H. Jackson with him on the brief], for the defendants.
The rights of the defendants are in no way changed by the fact that Mitchell purchased for an undisclosed principal, viz., the plaintiff. They can no more be required to deliver the certificate of the shares of stock to the plaintiff without being paid the amount which they paid therefor than the plaintiff's agent, Mitchell, could require them to deliver it to him without such payment. The fact that the shares were put in the name of the plaintiff by the defendants, by the direction of the plaintiff's said agent, after they had made the purchase, is immaterial, even if such direction could be held to have disclosed that the plaintiff was the principal of Mitchell. The purchase had already been made for Mitchell, and the rights of the parties fixed thereby. The act of the defendants in putting the shares in the name of the plaintiff did not change the right of the defendants to be paid on delivery of the certificate, whoever had to pay. The mere fact of Mitchell taking the certificate in a name other than his own, did not disclose that person as his principal, if that could make a difference. It is a common thing for the real purchaser of stock to take it in the name of another. The act is equivocal at best. But if it did, the case would still be that the defendants were to deliver the certificate only on payment. Payment by the plaintiff to Mitchell was not payment to them. He was not the defendants' agent, but the plaintiff's.
We have before us the common case of property, or the written certificate of title thereto, to be delivered on payment therefor. That the legal title to the shares may be in the plaintiff by reason of the transfer of the shares to his name, does not alter the case. It is only a defeasible title, at the suit of the defendants, for they made the transfer under a contract to be paid on delivery of the certificate by them ( Empire State Type Founding Co. v. Grant, 114 N.Y. 40); and equity will not require the certificate to be delivered to the plaintiff until he pays the purchase price.
Judgment for the defendants.
WOODWARD, JENKS, HOOKER and MILLER, JJ., concurred.
Judgment for defendants on submission of controversy, with costs.