(dissenting!) The facts of this case, as assumed or proved, lie within a narrow compass. The defendant received certain shares of stock, of the plaintiff’s assignors, to do the lest he could with them, and have one half of the proceeds. He did the best he could with them, (and so far as appears, that any body could,) and claims one half of their present value, or the proceeds of any sale that may be made or ordered. The stock has not been actually sold; the defendant, in the exercise of a wise discretion, finding it appreciating in the market, concluded it was best to retain it on hand. The plaintiff finding it actually unsold, claims the whole stock as his, forbids a sale by the defendant, and brings this action to compel a transfer of the whole to him, including one' half of the dividends. It is proved or conceded that the defendant has spent time and money and his best exertions in managing the stock, with a view to its ultimate disposition. The dividends of late years have constantly increased in amount, and we may reasonably conclude the stock has a higher market value than ever before. It is not denied but that the defendant had absolute authority to sell the stock one moment before the suit was commenced, and for aught I can see, had such authority after-wards, "not being restrained by injunction; though he was forbidden to sell by the plaintiff, and chose, as he lawfully might, to act in conformity to that prohibition. Of that the plaintiff cannot complain, and must accept the position of having disabled him to sell. I think both the *477legal and equitable consequences from this state of things very plain; and these are, that, the plaintiff cannot take away that stock from the defendant without accounting to him for one half of its value or proceeds.
There are three questions in the case: 1st. Is the present condition of the case a casus omissus, or is.it embraced by the contract ?
2d. Is the plaintiff’s construction of the contract the right one ?
3d. If not, has the court below made the proper decree; or is it one of which the plaintiff can complain ?
I. I think the case is within the contract. The power given to the defendant over the stock is an authority coupled with an interest. I doubt if it could have been reclaimed by the plaintiff’s assignors immediately after its execution. The defendant had rights under it, as well as the plaintiff. But it is not necessary to consider that question. The defendant acted under it for a series of years—performed services—devoted time—expended money in the execution of the trust. He did just what the contract called for; and all the contract called for, unless it was a sale of the property, which will be presently considered. I think the contract was intended to embrace every possible contingency. This is independent of the question whether the defendant fully performed the contract, or not.
H. The plaintiff claims that if the defendant did not sell, he lost entirely his claim to one half of the proceeds. This is neither just nor legal. It might well be that the very best thing the defendant could do with the stock (and this he was bound by the contract to do) would be that he should not sell. Under such circumstances^ a sale would be a violation, and not a performance of duty. In such case an action would not lie for compelling a transfer of the stock, or' for damages for not making a sale. But assume that the time had elapsed in which a sale *478ought to have been. had. Then the defendant would doubtless be liable in damages, if he had not done as well as he could. But still the stock would not be the plaintiff’s. The defendant would be liable for the difference ' in value between the present price of one half of the stock and what it would have brought if sold at the proper time; that is, that in the event that a sale was absolutely indispensable to be had under the contract, which I doubt. The stock in its present condition, grown up to be a valuable stock, yielding large dividends, may, without violence to language, be said to be the proceeds, product or result of the original comparatively worthless and unmarketable stock in the condition it was when placed in the defendant’s hands.
III. But assume a sale to be necessary; the consequence of.not selling is not to make the stock the plaintiff’s; especially when the plaintiff forbids a sale. The true legal consequence is that a sale should be ordered, and the proceeds equally divided between the parties, subject, if the defendant had been guilty of a violation of duty, to a deduction of such damages as the plaintiff had sustained by not making an earlier sale. In the present case no damages are pretended to have been sustained, and the true as well as equitable rule was to order a sale and to divide the proceeds. Perhaps in strictness this should have been the order of the court. But the order actually made was equally favorable to the plaintiff, and he has no cause to complain. He can sell the stock, himself, and thus realize the precise result contemplated by the contract, and take one half of the proceeds.
The disposition of the case made by the court below, as to costs, is not a matter of which the plaintiff can right-, fully complain. He demanded more than he was entitled to, to wit, the transfer of the whole stock, and did not offer to account for the dividends he had received. He was at *479least equally in fault with the defendant, and cannot object that costs were not imposed on either party.
[Albany Genebal Tebm, May 6, 1867.I think the disposition made of the case at the circuit was right, and should be sustained. Perhaps the case sufficiently raised questions of doubt and importance to justify a division of the costs on the appeal as well as in the original tribunal, and I am therefore content that a new trial should be denied, and that judgment should be rendered for the plaintiff in accordance with the disposition of the case at the circuit, without costs of appeal to either party.
Hew trial granted.
Peclcham, Ingalls and Sogelomn, Justices,]