I think the evidence, taken as a whole, upon the question of demand is .fairly susceptible of but one inference, viz., that, the defendants’ course would be' controlled entirely by the advice of their counsel, to whom plaintiff was- referred. Thereafter, a demand on the defendants would have been a useless and senseless formality, because they had said in substance that they would be guided entirely by their 'counsel. The plaintiff, therefore, very- properly, *437as. directed and requested personally and by letter, sought out the defendants’ attorneys after December 31, 1895. The exact language used between the representatives of the respective counsel is of no moment, because both agree that on that occasion the plaintiff’s representative was told in effect that the defendants would not deliver the .stock because Knott had failed to perform ; because he had assigned the certificate, etc. Í think the trial judge was right in holding as matter of law that a demand on the defendants personally after December thirty first was unnecessary, because their attorneys represented them and were authorized to state to the plaintiff the stand which the defendants would take. This, as communicated to the plaintiff, was that the stock would not be delivered for the reasons given at the interview. It is clear, moreover, that the defendants would not, contrary to counsel’s advice, have responded to any demand. Under those circumstances, to hold that such a demand was necessary would be to take advantage of a technical point or ground and reverse a proper judgment in plaintiff’s favor, in a case that has already been twice tried.
I, therefore, dissent.
Judgment reversed, new trial ordered, with costs to appellants, to abide event.