Coquard v. Wernse

Black, J.

The plaintiff Coquard brought this suit against Wernse and Dieckman to recover $2805.32, that being the amount which he paid them for four hundred shares of stock in the Pan Electric Telephone Company, on the ground that they failed to deliver the stock within a reasonable time after the purchase. •

The evidence for the plaintiff is to the effect that, after some conversations between himself and the defendant Wernse, he agreed to take four hundred shares of the stock, and then paid defend ants therefor the sum of $2805.32, and received from them the following receipt:

“Received of L. A. Coquard, January 25, 1886, St. Louis, Missouri, four hundred shares of Pan Electric Company Telephone stock, Parent Company. The same is included in a certain certificate of said company, numbered 29, for one thousand shares, dated April 30, 1866, issued to R. P. Looney; we agree to forward the same to Washington, District of Columbia, for the purpose of transfer, and agree to deliver new certificate to him as soon as received.

“Weknse & Dieckman.

‘ ‘ Pour hundred shares at seven dollars......$2800 00

“Expenses.........'........................ 5 32”

The plaintiff made repeated demands for a certificate for the four hundred shares, and finally, on the second of March, 1886, made a formal demand for a certificate, or a return of the purchase price with interest.

The evidence for the defendants is to the effect that James Edwards had for sale a certificate for one thousand shares of Pan Electric Telephone stock, and finally-proposed to take seven dollars per share. Wernse says Coquard was to take four hundred shares, J. & J. Taussig two hundred shares, Wernse & Dieckman two hundred shares, A. J. Weil one hundred shares and James Edwards one hundred shares; that the certificate for the one thousand shares was handed to him, and he saw it contained a provision to the effect that it was not transferable, except with the consent of the president and secretary of the company; that he showed the certificate to plaintiff, who said he was satisfied the company could not enforce the clause; and that it was after this that the plaintiff paid the money and received the receipt from Wernse & Dieckman. He says: “ We got the one thousand shares at seven dollars per share, all of us together. We all bought it together, as I understood it.” Plaintiff says he did not see the certificate until after he had purchased and paid for the four hundred shares.

Defendants received the money from the persons above named and paid it over to the person from whom the certificate for the one thousand shares was purchased, reserving no fee as compensation. They then sent the certificate to the company at Washington, District of Columbia, with a request that new certifi-' cates be issued to the various purchasing parties, but the company declined to consent to the transfer, and it was not until February, 1887, that a certificate for the four hundred shares could be procured in the name of the plaintiff. He'then declined to accept the stock.

The plaintiff asked, and the court refused to give, this instruction: “ And the court further declares that, by the terms of said paper given in evidence, the same constituted a contract between plaintiff and defendants, whereby defendants sold to plaintiff four hundred shares of the capital stock of the Pan Electric Telephone Company to be delivered in a new certificate as soon as received, but within a reasonable time.”

The contract, or receipt, simply states that the defendants received from the' plaintiff four hundred shares of stock included in the certificate for one thousand shares, which is described. It assumes that plaintiff had in some way become the owner of the four hundred shares, and the defendants thereby agree and only agree to forward the certificate to YYashington for the purpose of procuring a transfer and new certificates. By it the defendants constitute themselves bailees only for certain purposes which are clearly specified. The receipt does not profess to set out the terms of any sale. The instruction was, therefore, properly refused.

The terms of sale can only be ascertained by a resort to the parol evidence, and that evidence is conflicting. On the one hand it tends- to show a sale of four hundred shares by defendants to plaintiff for twenty-eight hundred dollars, and a failure of ‘ defendants to deliver the stock. On the other hand, it tends to show that the plaintiff purchased a specified interest in the particular certificate, and that he got all he contracted for. No instructions were asked upon this parol evidence, and there is, therefore, nothing further before us for review. The judgment, which was for defendants, is affirmed.

Barclay, J., not sitting; the other judges concur.