The plaintiffs agreed to subscribe for the stock in question and pay ten per cent thereon, and then to assign and transfer it to the defendant by a proper instrument of conveyance. The instrument tendered to the defendant on the 13th of August, was, in the language of the contract, a proper instrument of conveyance. Its effect was, to “ assign and transfer to the defendant all the interest which the plaintiffs had acquired in the stock by their subscription and the payment of $500.” This was all they had stipulated to do. It was no part of their engagement that they should procure a tranfer of the stock upon the books of the company. It was enough that they had executed an instrument which would transfer their interest to the defendant. That instrument would enable the defendant, if he desired it, to have the transfer made upon the books of the corporation, upon complying with its by-laws. It was for him, and not the plaintiffs, to pay the residue of the 30 per cent required before a transfer upon the books could be obtained. Having an instrument *25which would authorize him to procure such transfer to he made, upon making the requisite payment, it does not lie with him to object that the transfer had not been actually made.
I think, too, that the proper measure of damages was adopted at the circuit. The plaintiffs had subscribed for the stock under their agreement with the defendant. They had paid the ten per cent they had stipulated to pay, and had executed a sufficient assignment of the stock and tendered it to the defendant. The defendant had refused to accept the assignment, without sufficient cause. This tender and refusal must be regarded as equivalent to a performance, on the part of the plaintiffs, of their agreement to assign the stock. It then became the duty of the defendant, the plaintiffs having done all that was required of them, to pay the remaining ninety per cent upon the stock and to protect the plaintiffs against further liability. His omission to discharge this duty has subjected the plaintiffs to the payment of the judgment recovered against them for the balance of the subscription price of the stock. The amount which they have thus been compelled to pay, as the consequence of the defendant’s breach of his agreement, constitutes the proper measure of the plaintiffs’ recovery for such breach.
The situation of the defendant is not very unlike that of one who, having employed’a mechanic to construct an article, after-wards refuses to accept it. The tender of the article and the refusal to accept, in reference to an action by the mechanic for the price of the article, are equivalent to a delivery, and the mechanic, though he still have the property in his hands, may recover of his employer the full price. (Bement v. Smith, 15 Wend. 493. Sedg. on Dam. 282.) The plaintiffs had by their subscription and the payment of #500, brought the stock into existence. They had done this, too, upon the employment of the defendant. The defendant was bound to accept it, when tendered, and to pay for it according to the terms of the contract. The proper assignment was tendered and refused. This furnished a sufficient foundation for an action to recover the contract price, which was ninety per cent, payable as the same should become due and payable to the company. The plaintiffs *26were under no obligation either to sell the stock and credit the defendant with the proceeds, or to become the purchasers of it themselves. They held it for the defendant, and their only duty in respect to it was, to assign it to him upon request.
[Albany General Term, December 4, 1854.The provision in the judgment that upon the payment or collection of the amount recovered by the plaintiffs they should transfer the stock to the defendant, may be useless, but it is also harmless. It merely declares what would have been the duty of the plaintiffs without any such direction. At any rate, being a provision for the benefit of the defendant, it is not for him to complain. He is not obliged to enforce it. The judgment should therefore be affirmed.
Wright, Harris and Watson, Justices.]