Appeal from a judgment of the Superior Court of San Joaquin County and from an order denying a new trial. Joseph H. Budd, Judge.
Nicol & Orr, and F. W. Baldwin, for Appellant.
P. W. Bennett, and F. E. Dunlap, for Respondents.
JUDGES: Britt, C. Vanclief, C., and Searls, C., concurred. Van Fleet, J., Garoutte, J., Harrison, J.
Action to recover the contract price of certain shares of stock in the Bank of Stockton, a corporation, which defendants agreed to purchase of W. & P. Nicholls, a copartnership. The contract was in writing and bore date December 15, 1885; it stated that W. & P. Nicholls had that day sold to Reid, Tully, and Trahern, the defendants, "certificates Nos. 63 and 64, for fifty shares each" of said stock, for the sum of three thousand three hundred dollars, to be paid October 1, 1886, with interest; that the vendors were to retain possession and control of the stock until payment of the agreed price and then deliver the same to the purchasers, who on their part agreed to buy it on the terms stated. Plaintiff sues as assignee of the rights of W. & P. Nicholls under said contract; alleging tender of the certificates by him to defendants in May, 1890, their refusal to accept the same or to pay the purchase price, his continued readiness to deliver, etc. The court found, among other matters, that plaintiff and his alleged assignors were never ready or able to perform the conditions on their part of the said contract, that no tender was made to defendants, and rendered judgment in defendants' favor. It is claimed that the evidence does not justify the findings.
The record shows that the two certificates of stock were issued June 1, 1871; they were in the same form -- one of them setting forth "that William Nicholls of Placer county is the proprietor of fifty shares of the capital stock of the Bank of Stockton, which is transferable only on the books of the bank personally, or by attorney, upon the surrender of this certificate"; and the other showing that Philip Nicholls is the proprietor of fifty shares, transferable in like manner. Both said certificates were in possession of the firm of W. & P. Nicholls on December 15, 1885, and were in plaintiff's possession at the time of the alleged tender to defendants. William Nicholls, named in one of said certificates, died in the year 1877; at that time he and the said Philip composed the firm of W. & P. Nicholls. At the date of the contract of sale the firm consisted of said Philip Nicholls and John and William Nicholls, the last two being sons of William who died in 1877; the plaintiff, who is the son of said Philip, succeeded his father in the firm in the year 1886; the firm name has never been changed.
Except the mere fact of possession of said certificates, there is no evidence that the title of the deceased William Nicholls in the stock standing in his name ever passed to any of the said successive firms, or to the plaintiff; the certificate was produced at the trial, but bore no indorsement whatever, and was unaccompanied by other evidence of transfer. Possession only of the certificate was insufficient to establish transmission of title therein from William Nicholls, deceased, his representatives or heirs. (See Borland v. Nevada Bank , 99 Cal. 94; 37 Am. St. Rep. 32.) On the facts appearing, had the certificate been presented by plaintiff or by W. & P. Nicholls for transfer on the books of the bank, it would have been the duty of the latter to refuse to make such transfer. (Tafft v. Presidio etc. R. R. Co ., 84 Cal. 131; 18 Am. St. Rep. 166; Quay v. Presidio etc. R. R. Co ., 82 Cal. 1.) Regarding a contract not essentially different from that exhibited here, and under a statute quite similar, as concerns its influence on the question in hand, to section 324 of the Civil Code, the Court of Exchequer held that "the true meaning of the contract is that the party is to convey and deliver certificates showing, either on the face of them or from the indorsements, that the title is in the person conveying"; and that possession of the certificate was not of itself evidence of the right of the party producing it to convey the shares. (Hare v. Waring, 3 Mees. & W. 362.) While [42 P. 299] we may concede that the title could have been deraigned otherwise than by indorsement of the certificate, we fail to find evidence of its deraignment to plaintiff or his firm in any manner; the tender made by plaintiff was, therefore, ineffectual (Civ. Code, 1495), and the findings of the court were right. It is, of course, immaterial to investigate the title to the other certificate -- issued to Philip Nicholls -- though it also is in doubt, for defendants could not be required to accept one without the other. (Polhemus v. Heiman , 45 Cal. 573.) The judgment and order should be affirmed.
For the reasons given in the foregoing opinion the judgment and order are affirmed.