By this action plaintiff seeks to recover the sum of $1,500, secured to be paid by the terms of the following contract:
“ May 1, 1894.
“ In consideration of the purchase this day of 50 shares of the Pictorial Weeklies Co. stock, as contained in certificate Ho. 73, by Agnes J. .Maguire, at $30.00 per share, I hereby agree that said Agnes J. Maguire shall receive the sum of $300.00 during the year from this date, in quarterly dividends of $75.00 each; and.any dividend in excess of this amount that may be declared on the above-named stock. I further agree to repurchase this stock at same price, viz., $30.00 per share at the end of the year ending May 1st, 1895, should said Agnes J. Maguire wish to sell the same at that time, provided only, that I shall have thirty days’ notice in writing of such wish.
“WM. M. HALSTED.”
The proof established that plaintiff caused a notice to be given on the 9th day of April, 1895, requiring the defendant to take the stock on the first day of May, as stipulated in the agreement, negotiations were thereafter had between the parties, in which the time to repurchase the stock was extended until September 1, 1895. On July 23, 1895, the defendant was notified that he must be prepared to take the stock at the expiration of the extended time. . After the last notice and on August 5, 1895, the defendant notified the plaintiff that by the terms of the agreement he was not obligated to take the stock on account of the failure to give thirty days’ notice prior to the first day of May, and such is his present claim.
We do not think that this claim.is supported by the terms of the contract. Its provisions in this respect are that the defendant will repurchase the stock at the end of the year ending May 1, 1895, • should the plaintiff wish to sell -at that time. It is quite evident *230from this clause that the plaintiff, was to have the whole of the year in which to determine whether she would sell or retain the stock, and until the prescribed time had expired she was not called upon to do anything. The further stipulation is that, if the plaintiff concluded to sell, the defendant became entitled to thirty days’ notice in writing of such desire. The effect of these two clauses is obvious. The plaintiff had the whole of the year to make her election ; the defendant had thirty days after written notice of the election to sell in which to pay the money and take the stock. He could not be compelled to take the stock before the end of the year, neither could the plaintiff be compelled to make her election before that time. The plaintiff could make her election at any time before the expiration of the year and give the notice. If this time was thirty days before the expiration of the year, defendant’s liability would be fixed at the end of the year; if after then, at the expiration of the thirty days. The plaintiff gave the notice upon the ninth of April of her-election- to sell the stock, in consequence of which the .defendant’s liability to take and pay for the same became fixed thirty days thereafter. It follows from this that plaintiff became entitled to recover, unless she was bound to make a tender of the stock before bringing her action. The repudiation of the contract by the defendant on the 5th of August, 1895, authorized the plaintiff to retain the property and sue for the purchase price. (Dustan v. McAndrew, 44 N. Y. 72.) And the refusal to fulfill the contract dispensed with the necessity of a tender of the stock. (Duryea v. Bonnell, ante, p. 151.) The production - of the certificate upon the trial and the offer to assign the same was sufficient. (Lewis v. Andrews, 127 N. Y. 673.) In the view wé take of the case, the errors in rulings upon the trial, if any, were immaterial and harmless. ' The charge of the court was-more favorable to the defendant than that to which he was entitled. Indeed, upon the evidence, the plain tiff became entitled to the direction of a verdict, as the execution of the contract and the giving of the notice were admitted facts and entitled the plaintiff to a recovery.
The judgment should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.