The Hawaiian gazette., 1884-12-10

and interest, as the purchase pr ice o. Sky
shares Of the capital stock Of the Honolulu Lei
Works Co, a corporation established aud ex-
isting under llle laws Of this Kingdom, and
claimed 10 have been sold and delivered by
the plaintiff to the defendant.
The action was tried before Mr.. Justice
Austin and jury AZ tho last July Term, and
a verdict was rendered for the plaintiff as he
claimed, and The defendant appeals 70. this
Court.
The plaintiff e and defendants witnesses dis
agree as to the facts. Upon the plaintiffs show
inr, thedefendans offered to buy The sixty shares
Of stock At $40 share, and thereupon i've
regular certificates Of the stock, acgregzting
sixty shares were endorsed By the parties in
whose names they were issued, and thereupOn
were handed by the plaintiff to the defendant,
and he took them. counted and examined them,
and said they were all right, and said he would
pay for them in the morning. and then said
that he would like 10 have them in one certih-
cate The plaintiff then said II the defendant
wished he would get the stock in ono certih-
cate in defendants name. The defendant
thereupon took the certificates out Of his pocket
and handed them back to the plaintiff who took
them and thereaffer surrendered them al the
Office Of the company, and procured certih-
cate for sixty shares in The defendants name,
and the next day II was rendered to the de-
fcndani who refused 10 receive or pay for II,
Whercupon this action was brought.
The defendant says be made the offer Of so
a share for the stock, and the plaintiff said he
would take il. The defendant then sand Il
did not expect you 10 accept that OfrTS' anil
rlaintii said sits = bargain Thai when the
plaintiff bad endorsed the certificates he ca'ue
up To defendant with them in HE hand and
counted out sixty shares. Defendant said 81
don't want them, don't know whafto do with
them Plaintiff said u viii get them changed
for a new certificate, /" and started for the door.
Defendant said again that he did not want the
stock, and the next day declined to recoive or
pay for the new certificate for sixty shares on
its being rendered to him.
The questions in the case arise on exceptions
10 the Judges charge.
The Judge charge that the sale was complete
upon the defendants acceptance Of the en-
doTsed shares with the intention 10 appropd-
ate them TO his own use, and that his return
| inr them for the purpose Of having them
replaced by new certificate, in his OWE name
was not enough to make the sale incomplete
This WAS excepted to upon the ground that 1t
ASSUMED that such intention was proven or
admitted, and left nothing for the Jury TO find,
/ either upon the direct facts testified TO or upon
the inference 10 be drawn from those facts.
In considering this exception or any excep-
to charge, the charge must be looked at as a
whole. Another point stated to the Jury by
the Court was that if the facts were as shown
/ by the defendant, the verdict must be in his
favor, and whether that were so, or the facts
were as shown by the plaintiff was left
TO the jury,so that exception as q whole is IN
tenable.
The only point Of moment to be examined is
tie last clause excepted 10, that the return Of
the five certificates to be exchanged for one,
IN defendants own name, was not enough to
make the sale incomplete.
The authorities cited by defendants counsel
are ample and uBquestioHed by US, that if in a
contract for sale any thing remain 10 be done
by selection, by measurement, by alteration Of
the thing cold, or by taking possession, the
delivery may be held incomplete, and theisale |
unaccomplisbed. and whether to be so held is
usually question for the jury
Section 1893 Of the Civil Code enacts that if |
certificates Of stock In q corporation are issued
the stock may be transferred by the endorse
ment and delivery thereof. This provision |
substantially accords with the law in all CON-
mercial countries so far as we have heard.
Now the FIVE certificates Of stock aggregat-
ing sixty shares, in the hands Of the defen-
dani, were Of the exact commercial value Of |
rendered TO him. Having the Eve in hand, the
defendant by surrender Of them az the Office Of
The corporation could require one certificate
instead thereof, and having the one, could at
viii require the Eve for it. Either, when in
hand, includes the power to get the other.
The kind Of paper the certificates are written
on, the nature Of the handwriting, even the
words used, or the date, OF the name OF The
certifying officer are Is no moment ifthe Ger
tihoaie is legal certificate II Is exactly equi-
valeni in value to another or others Of the same
number Of shares The material Of the certif-
cafes constitutes no part Of their value.
II then the defendant having the five ceriih-
Gates in hand said they were all right and
asked the plaintiff to get them exchanged for
the one, be made The plaintiff his agent for
that purpose, and. If The next day when the
one certificate was rendered him, be had taken
it, it would have included the right al any
time Of getting by surrender, Eve certificates
Of the same amounts and worth the same as
those originally given up. It is impossible to
conceive that the rule cited Of something left
TO be done which renders the sale incomplete.
can apply 10 this case.
II this be so, then the part Of the charge
complained Of was right in law, and but little
else remains Of the defendants case.
The defendant excerpts 10 the instruction
that IF The. facts werea s testified to by the
witnesses for the plaintiff, the plaintiff was
entitled 10 verdict in his favor.s and to the
that it was for the Court and not
for The jury 10 say what facts constitute an
These exceptions must be treated as applied
to the facts Of the case at bar. The charge I
was not written, and We have no shorthand
reporter. If the literal words Of charge arc l
considered, many a sound direction ;
might he construed unsOuud. This would not
be far 10 The Court or the litiganis 1
The question in the case was whether there
vas delivery and acceptance Of the stock.
In hatch Va. Barley IL Cush. q, 70, Shaw
{. J. says that delivery is question Of law I
m uudisputed facts In Perkins VS. Hinsdale
md another o. Mass 1870, the Court say
III in n contract to sell, the conversation was 5
'hiefy oral, not absolutely distinct In its terms
II consistent in its different parts, and It's effect
'artly depends-on inference to be drawn from
{, the question goes 70 the Jury.
In Merchants National Bank vs.. Bangs lO2
lass. 2sl-5-e the Court say, in case where
be question was as to the sale and delivery
f carloads Of corn, Practically the difficulty
5 TO ascertain, when The evidence is meagre
Il equivocal, what the real intention Of the ;
larties was at the time. lis properly ques-
ion Of fact for the jury, under proper insiruc- I
ions, and mus, be submitted to them, unless ?
is plain az matter Of Jaw that the evidence i
7ill justify finding but one way
In Lane ei al. va Old Colony 6. Fall River ],
!. r. Co, Il Gray la, IN an action Of repleviu
Fhore defendant claimed a special lien for 4
alsnce Of freight unpaid, The facts were IN i
isputed, and the Court held as matter Of law :
hat the lien was good
In Harry vs.. Potter 10 Gray, 50, the Court Il
harged that il certain facts were true, they II
-ould constitute delivery. and 1t was held =
Eht
In Wood vs.. Tassoll G Q. B. 2s4, quoted 9
ON 10 Benjamin on Sales Sec. esi the suit I
as for delivery OF hops, part Of larger q
uautity IN warehouse Of one Fridd. The e
laintih was Informed, after the sale, that the d
ops were al Fridd's and wen, there, and had Il
KEN weighed and took away part, and before e.
z went for balance, they wen seized bv a a
editor q the vendor, held that the delivery q
] defendant was al be vss bound to make. le
! this case it is Vorih remarking that Lord
eunAn, in delivering the Judgment said 81 e
as induced by some degree OF Importantly to D,
ave It as question to the jury whether the y
sfendauI ought no, 10 have given the plaintiff \.
delivery order. though not expressly raquif-
IN performance OF his contract We all 1.
INK that was wrong in 50 submitting the =
alter to them, and that the correct course :.