Fuller v. Christian ( 1906 )

Bischoff, J.

Accepting the defendant’s testimony of a modification of his agreement as expressed in the receipt delivered at the time the money in question was paid him, time for performance upon his part, in the delivery of the certificates of stock, was postponed; but the agreement was not otherwise changed, and it remained that the buyer, the plaintiff’s assignor, was entitled to an actual delivery of the certificates evidencing the issue of stock. The condition which the delivery was to await, as agreed, was concededly fulfilled and the certificates were not delivered by the defendant, who- rested his defense upon the claim that the stock was issued, according to the stock book of the corporation, and upon his belief that the certificates were mailed to the plaintiff’s assignor.

There was, however, no proof of mailing; and the fact that the stock was issued, assuming the proof to have been competent, was wholly immaterial to the question of the defendant’s performance of his agreement to deliver the certificates.

Nonperformance was sufficiently indicated by the plaintiff’s evidence of the failure to deliver the stock, and the evidence for the defendant in no way supported a defense to the cause of action.

The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Scott and Tbuax, JJ., concur.

. Judgment reversed and new trial ordered, with costs to appellant to abide event.