Dilts v. Wilson

to you one-half of whatever we receive. It is understood that any interest due or payable on the railway or Carmen bonds up to the completion of this contract is your personal property, and if one-half of the increased sale or Carmen bonds with coupons attached does not equal the accrued interest at date of sale, namely, two hundred and fifty-two and 00/ioo ($252.00) dollars, the coupons are to be detached before surrendering the Carmen bonds and become your personal property.”

It appears by uncontroverted evidence that the plaintiff knew that the defendant did not own the bonds and was acting as broker, and it is to be inferred from the evidence that the plaintiff knew that the bonds were owned by one Fisher. The contract, however, was made with the defendant, and the plaintiff relied solely on his responsibility. The agreement was consummated by the delivery of the railroad company bonds to the plaintiff, and by the delivery by the plaintiff to the defendant of a certified check for $1,800. The plaintiff showed that he duly demanded that the defendant perform his agreement to have the bonds retired, and that the defendant failed and refused to perform the same.

The plaintiff has recovered the entire amount which the defendant agreed to obtain for plaintiff on the retirement of the bonds, together with the interest thereon. But the plaintiff still owns and retains the bonds, and there is no evidence with respect to the value thereof. The plaintiff upon the trial made further tender of the bonds for retirement on the terms of the contract, and it is argued that from the failure of the defendant to perform and to accept the tender of the bonds it may be inferred that they are worthless. We are of opinion that there is no foundation for such an inference; but, if there were, che question was not submitted to the jury. The court charged that, if they found against the defendant on his contention that there Was a collateral agreement by which, in the event that he failed to retire the railroad company bonds, he was to forfeit his claim to the mining company bonds and to be relieved from liability under his agreement to procure the retirement of the bonds, they should find a verdict for the plaintiff. The jury, under this charge, presumably found that the collateral agreement was not made as claimed by the defendant, and that the only agreement was the one in writing herein quoted, for a general verdict was rendered “for the plaintiff.” Thereupon the court inquired of the attorney for the plaintiff whether interest had been computed on the $3,150, and was 'informed that the interest was $346.50; and the record shows that the jury thereupon “rendered a verdict for the plaintiff for $3,496.50.” The attorney for the defendant, at the close of the plaintiff’s case, and at the close of the evidence, moved for a dismissal of the complaint on the ground, among others, that the plaintiff had failed to show damages, in that he had failed to show the value of the bonds, or that they were worthless.

[1,2] We are of opinion that the case was tried and submitted to the jury on an erroneous theory. This is an action at law for damages for breach of the defendant’s contract, which is not one of guaranty, but is a direct original obligation (see Kernochan v. Murray, 111 N. Y. 306 , 18 N. E. 868 , 2 L. R A. 183 , 7 Am. St. Rep. 744 );

It follows, therefore, that the judgment and order should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.