and capacity of the vendor, the contract, the rights, duties, and liabilities to which it gives rise, and the remedies incidental to those rights. First, then, of the title and capacity of the intended vendor. A party may enter into a contract for the sale of shares in a railway company, although at the time of the contract he is not possessed of them, nor has entered into any contract to purchase them, nor has reasonable any expectation of becoming possessed of them by the time appointed for the delivery of such shares, otherwise than by purchasing them after the making of the contract, the stock-jobbing act not applying to bargains for the stock of a railway company, but only for public stock; (g) but where the other party bargains for a conveyance from the vendor himself, there the latter, it should seem, must take care to acquire a property in the shares by the time appointed for the transfer, so as to be capable of conveying himself, because under such circumstances the intended transferee must be understood as bargaining for the security of the other's implied covenant for title, which he cannot have, if a different person is owner, and is to convey to him. (h) As a general rule, a vendor ought also to take care to pay all calls due before the time fixed for the transfer, as a railway act usually provides that no shares in the

(g) Hewitt v. Price, 4 M. & Gr. 355; Hibblewhite v. M'Morine, 5 M. & W. 462. But it is otherwise, as it seems, by the French law; and therefore a contract made in France for the sale of shares in a foreign undertaking cannot, under such circumstances, be enforced in this country; Hannuic v. Goldner, 11 M. & W. 849.

(h) Hibblewhite v. M'Morine, 2 Railw. Cas. 66; S. C. 6 M. & W. 200.

undertaking shall be sold after any call has become payable in respect of such shares unless the full amount of that call has been paid. (i) This provision however the purchaser may waive by any agreement or stipulation to that effect, even though it be by parol only, shares in a railway company being neither an interest in land nor goods and merchandize, and therefore contracts regarding them not falling within the operation of the statute of frauds.(k)

349. Secondly. Of the contract; and herein, 1st, of its requisites; 2nd, of its form; 3rd, of the rules of construction by which it is governed. The requisites of a contract for the sale of railway shares must necessarily be the same as those of an ordinary con

(i) See ante, 256, n. (h).

(k) Ibid.; see also Humble v. Mitchell, 11 A. & E. 205; S. C. 2 Railw. Cas. 70; Bradley v. Holdsworth, 3 M. & W. 422; Duncuft v. Albrecht, 12 Sim. 189. See also Hargreaves v. Parsons, 13 M. & W. 561; there the defendant and one P. agreed for the sale by P. to the defendant of the "put or call" of fifty foreign railway shares at a certain price per share premium, at any time on or before the 18th February, 1844. Before that day the defendant agreed to resell the option to the plaintiff and to guarantee the performance of the agreement by P. On the 16th February, the plaintiff called the shares (i. e. required the delivery of them pursuant to the agreement), but it was at the same time verbally agreed between him and the defendant and P. that they should be delivered by P. to the plaintiff, not on the 18th of February, but on the 2d of March at Paris. It was held that this was not an agreement by the defendant to be answerable for the default of P., but an original promise by the defendant for the delivery of the shares by P., for which a note in writing was not required by the statute of frauds, that statute applying only to promises made to persons to whom another was already or was to become answerable, and P.never having contracted, &c. with the plaintiff.

tract of sale, viz. the mutual assent of the parties and an agreed price.

350. (2ndly.) Of the form. A contract for the sale of railway shares need not be in writing, inasmuch as railway shares, as has before been said, are neither an interest in land, nor goods, wares, or merchandize, (k) and therefore contracts regarding them do not fall within the operation of the statute of frauds.

351. (3rdly.) The class of contracts in question must, it seems, be taken to be governed by the like rules of construction as mercantile contracts in general, of which they form a class. Evidence, for instance, of a prevailing usage, may be called in to alter, qualify or explain the terms of such a contract. Where, therefore, parties bargain for the sale of shares, to be transferred on or before a given day, although on the face of the contract the option of the time would seem to be with the seller, being the party to perform the first act, evidence would, nevertheless, it should seem, be admissible to show that, according to the usage prevailing in such contracts, the option was with the purchaser. (1) So likewise in an action for not accepting (m) railway shares sold at Liverpool, and to be delivered in a reasonable time, a rule of the Liverpool Stock Exchange, acted on by all the Liverpool brokers, and seen by the defendant, "that the seller was in all cases entitled to seven days to complete his contract by delivery, the time to be computed from the day

(k) See ante, 257, n. (k).

(1) Hare v. Waring, 3 M. & W. 376.

(m) Stewart v. Cauty, 2 Railw. Cas. 616; S. C. 8 M. & W.

on which he was made acquainted with the name of his transferee," was held admissible as a guide to the determination of what was reasonable time under all the circumstances of the case. (m)

352. Thirdly. We have to speak of the consequences of the contract; and herein, of the rights, duties and liabilities of the vendor and vendee respectively.

The main duties of the vendor, under a contract such as that in question, are, 1st, to show a good title (n) to the shares forming the subject of the contract; 2ndly, to be ready and willing to make a legal transfer of such shares at the proper time, and according to the terms of the contract, &c.

353. The main duties of the purchaser on the other hand are, 1st, to be ready to accept and pay for the shares in question (o) pursuant to the terms of the contract; 2ndly, to prepare a proper conveyance, and tender the same for execution, upon having a good title to the shares made out to him; (p) and lastly, upon the requisition of the vendor in that behalf, himself to execute the instrument, and to deliver, or attend with the vendor to deliver, such instrument to the company, in order that a memo

(m) See ante, 258, n. (m).

(n) See judgment of the Court delivered by Parke, B., in Humble v. Langston, 2 Railway Cas. 541; S. C. 7 M. & W. 517; Hibblewhite v. M'Morine, 2 Railw. Cas. 66; S. C. 6 M. & W. 200.

(0) Stephens v. De Medina, 21 Law Journ. Q. B. 120; S. C. 4 A. & E. N. S. 422; Lawrence v. Knowles, 5 Bing. N. C. 399. Proof of the purchaser being incapable, from the state of his finances, of paying for the shares, is, it seems, sufficient to esta blish a want of readiness and willingness; ibid.

(p) Stephens v. De Medina, ubi supra.

rial of the transfer may be entered in the company's books, and indorsed on the deed of transfer pursuant to the ordinary provisions of railway acts. (p)

354. Right of action of vendor. It follows, from the above brief description of the duties of the parties, that a vendor, to entitle himself to complain of the nonacceptance of shares by the purchaser, must show two things: 1st, that he made out a good title to the shares, (q) and 2ndly, a readiness and willingness to transfer, &c. (r)

To satisfy the above conditions, it would seem enough for a vendor to prove a tender of share cer

(p) Judgment of Parke, B., in Humble v. Langston, ubi supra.

(4) The transfer book of the company in which the plaintiff's name is entered as transferee is no proof of his proprietorship of the shares; Hare v. Waring, 3 M. & W. 362.

(r) Hannuic v. Goldner, 11 M. & W. 849. There, the first count of the declaration, which was in assumpsit, alleged that in consideration that the plaintiff, at the defendant's request, would purchase certain shares in a foreign undertaking, called the Bank of Belgium, at a stated price per share, the defendant promised the plaintiff that he would upon request accept the shares and pay for them. The count then averred that the plaintiff, relying upon the defendant's promise, did purchase the said shares at the said price, nevertheless the defendant did not nor would accept them or pay for them the money for which the plaintiff had so purchased the same, although often requested so to do by the plaintiff, and thereby the plaintiff was obliged to pay to F. P., the person from whom he purchased the shares, the money he was liable to pay him by reason of such purchase. The court would seem to have inclined to the opinion that, whether the count imported that the plaintiff was to purchase the shares from F., and afterwards sell them to the defendant, or to purchase them from F. as agent for the defendant, it was bad in substance, for want of an allegation of readiness and willingness either in the plaintiff or in F. to deliver them to the defendant.