On appeal from the Supreme Court.
For the appellant, Bilder & Bilder.
For the respondent, Pitney, Hardin & Skinner.
The opinion of the court was delivered by
LLOYD, J. The action in this case was instituted by the plaintiff below to recover a loss claimed to have been sustained on a re-sale of certain stock which the defendant had ordered purchased, and which, when tendered for delivery, he refused to accept and pay for. There was a verdict for the plaintiff and from the judgment entered thereon the defendant appeals.
Numerous grounds are urged for reversal but we deem it necessary to discuss only those respecting the instruction to the jury, and so much of the facts of the case as may be necessary to a proper understanding of the charge and its application.
The plaintiff proved a purchase of certain shares of stock of the United Founders Corporation made on an order given
by the defendant for that purpose. It was during the severe fall in prices of October, 1929, when the great mass of securities being sold clogged the machinery of transfer and delayed deliveries. The order was given on October 22d and was complied with by the purchase of a portion of the stock on the 24th and of the balance on November 4th. The stock purchased on November 4th was accepted and paid for by the defendant, but that purchased on October 24th (not having been tendered for delivery until November 18th by reason of the failure of delivery by the seller to the plaintiff) was refused by the defendant on the ground that after the purchase by the plaintiff the defendant, deeming the delay in delivery unreasonable, had canceled the order. Thereupon and after notice to the defendant the stock so refused was sold at a loss, and it was to recover this loss that the action was brought.
The case on the proofs was, as we think, one for the jury under the circumstances on the reasonableness of the time of delivery, and the action of the learned trial judge in so holding was proper, but there was error in the charge which compels a reversal of the judgment.
Among the requests for instruction was one by the defendant to the effect that --
"If plaintiff failed to tender delivery of such shares of stock to defendant within a reasonable time after October 24th, 1929, plaintiff is not entitled to recover any judgment against defendant, but on the ...