The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1866-02-13
Important Decision ON Stock Sales.
SUPERIOR COURT-GENERAL TERM.


Before Justices Barbour, Mcneil and McCunn.
FEB. 12-oharles Spear julius Hast This was
one damages for alleged breach of contract
made March g. 1866, 70 deliver sellers option, in ten
days. certain number Of shares OF the stock Of the Chi
cago and Rock Island Railroad Company On the 23d Of
March dividend Of FIVE per cent declared by the
company payable April u.s. and the transfer books
closed March 81. The having been referred, q
report was made and confirmed In favor Of plaintiff
lowing him the difference between the contract price
and the value day OF demand with Ave per cent for
dividend The defendant excepted and appealed where
upon the following General Term decision made:-
Tho motion for non-suit on the ground that the
tract void being within the statute Of frauds
2sh Of March, 1885, the plaintiff and defendant entered
into agreement signed by the defendant, whereby I"
&c. and the answer admitted that che tho dcfendsn
signed and executed q contract for the sale"
SC, alleged In the complaint Under this allie
CATION and admission further proof OF contract
WAS sa Ss was sSsnsy "a admitted I by
the answer and the plaintiff could safely have rested
his case without producing the written agreement In
statute OF frauds. The averment that the parties
had made an agreement was sufficient avermcnt
OF valid contract But the introduction at the trial
Of the paper signed by the defendant only, did not
help the defendant to raise the question. There il
avcrmcnt in the answer that the contract was
signed by both parties nor was there any proof on
the trial that the plaintiff had not signed and de-
ivcred similar paper TO the defendant The statute
containing the contract but cachparty must subscribe
and the subscription may be upon separate papers An
offer and acceptance, and bought and sold notes. are
familiar illustrations OF this species Of contract The
seller signs paper stating that he has sold the pur
chaser, and the purchaser signs another paper stating
that he has bought OF the seller: such contracts
are not affected by the statute OF frauds From
anything appearing 70 the contrary, tho paper in
trodnced In evidence was . " sold note' tho
bought noto' being In the defendants possession
We think, however, the referee erred In allowing the
dividend as part OF the damages II had been declared
before the sale, and, although not payable until after
the day dxed for the delivery OF the stock belonged 10
the defendant and did not pass 70 the plaintiff under
the contract Dividends are not incident stock,
10 pass with the stock. Unlike interest," they are
not earned by the money represented in the stock,
but by the Corporation, and divided among the
shareholders, and may DO sold assigned with
out parting with the stock. Some evidence
was admitted OF custom OF brokers by
which dividends declared, but not paid, belong 10
alter well settled principles applicable TO the law Of
contracts Custom may be Incorporated into contract
and become part OF IT, where appears have been
the intention OF the parties that II should be- and where
fairly be enforced that the parties contracted with
reference 10 H. SO custom may control vary the
meaning OF words, and, whom long established.
may add 70 the terms OF a contract But under q
a custom that something moro passes TO
the purchaser cannot be allowed II varies the agree
ment by adding TO IT, and II would not DO merely an ex-
PLANTATION or Interpretation OF H. The Judgment must
be reversed and trial ordered with costs 10 the
appellant 10 abide the event. unless the plaintiff stpu.
ates In writing within ten days from tho entry of this
order TO deduct from the Judgment f507 80 being The
amount OF the dividend and ntcres. thereon Upon so
tho judgment reduced 10 DO affirmed but
without costs