This action was brought to recover the sum of $100,000, less a payment thereon of $25,000, with interest from the 26th day of February, 1889.

The plaintiff alleged in his complaint that prior to the 26th day of December, 1888, he owned and possessed certain bonds and stocks of telegraph companies, for convenience called telegraph properties, and at that time an agreement was entered into between him and the defendants whereby they agreed to purchase the telegraph properties and pay therefor the sum of $100,000 upon the assignment and delivery of such properties to them by him; that he thereafter assigned and transferred the properties to the defendants and performed the agreement on his part; that thereafter, on or about the 25th day of February, 1889, they paid him the sum of $25,000 as a partial payment, and that the balance, $75,000, remained due to him, and he prayed judgment for that sum with interest.

The defendants answered separately, denying the allegations of the complaint and making certain affirmative allegations against the plaintiff's right to recover.

The first trial of the action resulted in a judgment in favor of the plaintiff upon a verdict directed by the court, which judgment was reversed by this court and a new trial granted on the ground that certain questions of fact should have been submitted to the jury. (See 140 N. Y. 640.)

Upon the second trial, now under review, all such questions were decided in favor of plaintiff.

The facts will be found fully stated in the prevailing opinion on the former appeal and in the opinion herein.

Joseph Larocque for appellants. It was incumbent upon the plaintiff, in order to put himself in a position to maintain an action for the recovery of the contract price, to allege and prove either the performance on his part of all things in the contract contained to be performed by him, including the delivery to the defendants of all the securities embraced in the contract, or a good and sufficient tender of the whole of

the samne.

Rose, 10

the said securities and his ability to deliver (Mount v. Lyon, 49 N. Y. 552; Porter v. Johns. 299; Bank of Columbia v. Hagner, 1 Pet. 465; Topping v. Root, 5 Cow. 404; Champlin v. Rowley, 18 Wend. 187; Lester v. Jewett, 11 N. Y. 453; Smith v. Brady, 17 N. Y. 187; Catlin v. Tobias, 26 N. Y. 217; Butler v. Butler, 77 N. Y. 472; Van Clief v. Van Vechten, 130 N. Y. 571; McGehee v. Hill, 4 Porter [Ala.], 170; Shipps v. Atkinson, 36 N. E. Rep. 375; Dana v. King, 2 Pick. 155; F. M. Co. v. Brown, 124 U. S. 389; Nelson v. P. F. E. Co., 55 N. Y. 480; Bigler v. Morgan, 77 N. Y. 312; Eddy v. Davis, 116 N. Y. 247; Goodrich v. Sweeney, 4 J. & S. 320; Frost v. Knight, L. R. [7 Exch.] 111; Johnstone v. Milling, L. R. [16 Q. B. Div.] 460; Kadish v. Young, 108 Ill. 170; R. S. Co. v. L. F. Co., 130 Ill. 660; Bernstein v. Meech, 130 N. Y. 354; Weeks v. Maillardet, 14 East, 568; Moir v. Brown, 14 Barb. 39.) The court below erred in the instruction given to the jury, that the telegrams of themselves are susceptible of an interpretation which would bind Mr. Mackay to the supposed contract in controversy. (Trustees, etc., v. Borman, 136 N. Y. 521; Glenn v. Garth, 133 N. Y. 18; Rowan v. Hyatt, 45 N. Y. 138; Baldwin v. Burrows, 47 N. Y. 199, 212; Smith v. Kidd, 68 N. Y. 142; Owings v. Hull, 9 Pet. 629; Combs v. Scott, 12 Allen, 493, 496; Benecke v. Ins. Co., 105 U. S. 355, 360; Bloomfield v. C. O, Bank, 121 U. S. 135; R. Mills v. R. R. Co., 5 Fed. Rep. 852; McClel land v. Whitely, 15 Fed. Rep. 322; Dickinson v. Conway, 12 Allen, 491; Walker v. Walker, 5 Heisk. [Tenn.] 425; Bank v. Drake, 29 Kans. 311; Jackson v. Badger, 35 Minn. 52; Fitzmaurice v. Bayley, 6 El. & Bl. [Q. B.] 868; Lewis v. Real, 13 M. & W. 834; Rogers v. Kneeland, 10 Wend. 218.)

v:

Esek Cowen and Joseph II. Choate for respondent. The motion to direct a verdict for the defendants was properly denied. (Mount v. Lyon, 49 N. Y. 552.) The point that it did not appear that the plaintiff could have delivered the bonds, even if the defendants had paid the purchase money

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Opinion of the Court, per GRAY, J.

claimed in this action, is untenable. It has always been assumed that the plaintiff could have performed on his part if the defendants had been willing to perform on theirs. (Devoe v. Brandt, 58 Barb. 493; Thayer v. Marsh, 75 N. Y. 340; Hofheimer v. Campbell, 59 N. Y. 269; Binse v. Wood, 37 N. Y. 526; Webb v. Odell, 49 N. Y. 583.) Upon the repudiation of the contract and the waiver of the tender of the bonds by the defendants, the plaintiff had a complete and perfect cause of action. After he had brought this suit, his sole cause of action was for the purchase price, and his rights in this suit could not be affected by any subsequent action with regard to the securities. Nor was he bound to bring them into court as a condition precedent to a recovery. (Smith v. Lewis, 26 Conn. 10; Westfall v. Peacock, 63 Barb. 209; Morris v. Rexford, 18 N. Y. 552; Moller v. Tuska, 87 N. Y. 170.)

GRAY, J. When this case was reviewed by us upon the prior appeal (140 N. Y. 640), it was decided that there were certain questions of fact, upon the evidence, which should have been submitted to the jury and, because the trial judge had refused to do so and had directed a verdict for the plaintiff, the judgment recovered was reversed and a new trial was ordered. There was a sharp difference in opinion as to the effect of the evidence. It was thought by some of the members of the court that the proof was such as to establish a complete adoption by Mackay of the contract, which De Castro, as his representative or agent, had made for him with Stokes and which provided for the sale and transfer by the latter to Mackay of the bonds and stocks of the United Lines Telegraph Company held by him, or to which he might be entitled, in consideration of the payment of $100,000 and the cancellation of an existing indebtedness. A general outline of the facts may be briefly given. The telegraph interests and properties had been acquired and created by Stokes as the result of a joint venture with Mackay, undertaken in 1884, with moneys furnished by the latter. It had commenced with

Opinion of the Court, per GRAY, J.

[Vol. 147.

the acquisition by Stokes of the Bankers' and Merchants' Telegraph Company's properties and franchises, at a receiver's sale thereof. He reorganized the same into the United Lines Telegraph Company; became its president; received $2,380,000 of the $3,000,000 of capital stock and held, or controlled, the $1,200,000 of first mortgage bonds and added to the company's property by building or purchasing additional telegraph lines. It was the purpose, eventually, when the scheme was ripe, to consolidate this company with the Postal Telegraph Company, of which Mackay was, practically, the owner and for the benefit of which the other properties had been acquired and developed. Either in the sécurities of the new company to be so formed, or in the profits of the joint enterprise, (it was a question which), Stokes had an interest.

Meanwhile, everything stood in Stokes' name and was in his possession and control. After about four years, Mackay desired to obtain these telegraph bonds and stocks and instructed his agent, De Castro, to procure their transfer by Stokes. Stokes was not unwilling to turn them over; but insisted upon some agreement being made, which should recognize and provide for his interest in the telegraph properties or in the profits of the enterprise. The contract in question was then made and signed by Stokes and De Castro on December 24th, 1888; Stokes delivering to Ingersoll, as a condition of De Castro's signature, a large number of the bonds of the United Lines Company, to be held until Mackay was heard from, in approval, or otherwise, of what his agent had done. The day when the contract was so made, De Castro sent a telegram to Mackay, stating that Stokes had "turned over to Ingersoll $935,000 of bonds and other securities" and had "signed also an agreement which is forwarded and which leaves him out" and that "Ingersoll will turn over to E. C. Platt these securities for custody; this the only way it could be done and I hope it will be satisfactory." Platt, the representative of the Nevada Bank and the financial agent of Mackay here, also, on the same day, telegraphed to him about Stokes having deposited the bonds with Ingersoll

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and that "$1,600,000 stock will be assigned and all judgments turned over on your order as soon as agreement forwarded to day is signed by you." Mackay did not wait to see the contract, but immediately telegraphed to De Castro: "All right and satisfactory. I want you to tell Ingersoll to do nothing in this case except what he knows to be correct and legal, as I do not want trouble for what has been done in the past, nor in the future." And to Platt he, also, at once telegraphed: "All right. You take whatever securities Ingersoll gives you, as Ingersoll understands this matter fully." Stokes had not been shown the telegram sent by De Castro on December 24th; but was only told by him that he had telegraphed Mackay about the arrangement. On December 26th, upon De Castro's informing him of Mackay's telegram that it was "all right and satisfactory," Stokes went to the company's office and made a transfer in blank of the 23,800 shares of stock which he held and delivered the same. to Townsend for Mackay. The same day De Castro receipted upon the contract as for the bonds previously delivered to and held by Ingersoll. The latter then wrote Mackay a letter on December 26th, informing him of the delivery by Stokes of the bonds and the stock and enclosing the contract. To this letter Mackay answered, to the effect that "on looking over the agreement he saw no necessity for signing it. Some portions of it are wrong;" that the claim against Read & Co. (Stokes' firm) "had nothing whatever to do with the telegraph business" and that "there is no necessity to make any change at present except to place the securities with Mr. Platt for safe-keeping." Subsequently, there were two significant occurrences. In the first place, the certificate for the 23,800 shares of stock was filled up with Mackay's name; thus making the transfer of the stock absolute. Then a loan of $25,000, secured by Stokes from a bank upon the collateral security of $100,000 of the United Lines bonds, was paid off by money obtained from Mackay and the bonds were taken up and delivered to Platt for Mackay. With this sum of $25,000 Stokes has credited Mackay, as in part payment of