(dissenting.) I find myself unable to concur with the presiding justice in his view of the measure of damages. His opinion is an exceedingly forcible exposition of the theory upon which alone the plaintiff can hope to recover the par value of the shares in question, and it is therefore with great diffidence, and a due sense of what is needful to answer such vigorous thought convincingly, that I venture to present the opposite, and, as I conceive, correct, view.' I cannot, however, believe that any just legal principle requires us to mulct these defendants in the sum of $200,000 for the breach of a partly executed contract to deliver to the plaintiff a piece of paper representing 2,000 shares of full-paid, but utterly worthless, stock. For that is precisely what it comes to. The underlying thought which pervades the presiding justice’s opinion, and which seems to have led to his ultimate conclusion, is that, unless the defendants are required to pay to the plaintiff this enormous sum, they will be permitted to profit by their own wrong. I have no fault to find with the principle which presents such unrighteous profit, although I agree with Mr. Sedgwick that “the motives of the defaulter are not to be taken into view.” The principle itself is just, and well settled; but, as I conceive, wholly inapplicable to the special facts.of this case. It was for-mulated and well illustrated in Suydam v. Jenkins, 3 Sandf. 620, where Dxjer, J., observed “that the owner to whom compensation is due must be fully *845indemnified, and that the wrong-doer must not be permitted to derive any benefit or advantage whatever from his wrongful act.” Judge Duer’s opinion in this case received the most unqualified approval from the court of appeals in Baker v. Drake, 53 N. Y. 224, where Raparlo, J„ pointed out the true measure of damages in all actions, whether founded upon contract or tort, always excepting the special cases where punitory damages are allowed. “The law,” he says, “awards to the party injured a just indemnity for the wrong which lias been done him, and no more. * * * The in-q uiry must always be, ‘ What is an adequate indem nity to the party injured ? ’ ” Now the principle emunciated by Judge Duer in Suydam v. Jenkins, and emphasized in Bruce v. Welch, 5 N. Y. Supp. 668, seems to me to have no possible application to the case at bar, for the simple and obvious reason that the benefit or advantage which the defendants derived from their wrongful act was not such as could or should, under any circumstances, have inured to the benefit or advantage of the plaintiff. That would have been the case only where the defendants had procured the stock at par, and sold it, in disregard of their bargain, at a higher price. The benefit or advantage which the defendants derived from their failure to purchase the stock was such as would have inured solely to the benefit of the company; and indeed the latter and its creditors were alone substantially interested in the specific performance of this part of the defendants’ contract. Now the benefit or advantage contemplated by the principle in question is not the saving by the wrong-doer of what would otherwise be lost to him, but the actual gain which has gone into liis pocket as the fruit of his injustice. It must not be lost sight of that the cardinal principle is indemnity, pure and simple, and that this principle has never been extended one hair’s breadth beyond the refunding of actual gain, which otherwise would or should have gone into the pocket of the wronged party. “This profit,” as Judge Duer remarked, the wrong-doer “must in all cases be compelled to refund. ” The doctrine necessarily contended for by the plaintiff, however, is not that the defendants here must refund,—for they have gained nothing by the use or conversion of the property which should have been delivered to the plaintiff, and consequently have nothing to refund,—but that they must add to the sum required for his indemnity a further sum, equal in amount to that which it was their contract duty to lose; in other words, as the defendants had agreed to deliver a valueless thing, which they did not possess, they were bound to secure it at all hazards or cost; and the measure of damages for failure to so obtain and deliver it is the sum for which alone such valueless thing could have been procured. Certainly this expenditure was not required for the purpose of indemnifying the vendor, nor to prevent the vendee from profiting at the vendor’s expense by his own wrong. If, therefore, the amount which the plaintiff insists should have been thus, expended is awarded to him as damages, such damages are simply and distinctly punitive. The defendants are punished for their refusal to engulf $200,000 in the company’s treasury by a fine of that precise sum, payable to the plaintiff. This is worse even than would be a decree for specific performance; for there the money would have to be paid into the company’s treasury, and the plaintiff would only receive in specie the worthless, though full-paid, stock. It is apparent,- then, that this sum of $200,000 has no relation to indemnity. The latter is measured by the real value of the stock, and can be measured by nothing else.
Then, as to profiting by the breach, what benefit have the wrong-doers here derived from their own injustice? Have they sold the 2,000 shares for more than the six pence awarded? Have they ever had it in their power to do so? Not at all. Now this, as we have seen, is the nature of the profit which the law will not permit the wrong-doer to retain. This is clearly illustrated by Judge Duer in the following language; “Even where the market value of the property, when the right of action accrued, would more than suffice to-*846indemnify the owner, it is not, in all cases, that the liability of the wrongdoer should be limited to that amount. It is for the value that he has himself realized, or might realize, that he is «bound to account, and for which judgment should be rendered against him. Hence, should it appear in evidence upon the trial that he had in fact obtained upon a sale of the property a larger price than its value when he required the possession, or that he still retained the possession, and that an advance price could then be obtained, in each case the increase upon the original value, which otherwise would remain as a profit in his hands, ought to be allowed as cumulative damages.” Page 624. Such, too, was the nature of the benefit which the landlord was not permitted to retain in Bruce v. Welch, supra. It is characterized in like manner by Mr. Sedgwick: “It may undoubtedly be urged,” he says, “and with force, that, the contract being violated by the defendant, the retention of any part of the plaintiff’s money is against conscience.” Sedg. Dam. (2d Ed.) 274. Indeed, as already pointed out, the principle of adding what Judge Duer called “cumulative damages” has never been extended beyond the direct pecuniary gain derived by the wrong-doer from the act of conversion, or derivable from the continued possession of the property. It is said that the adoption of any other rule than that which allows the plaintiff as “eumultative damages” the sum which it was the defendants’ duty to lose in the faithful performance of their contract would enable the latter to keep the plaintiff’s property without paying for it. But not so, for there can be no doubt that, with such a contract as the present, and under the circumstances surrounding it, the plaintiff could have returned the $27,500 of cash and the 2,000 shares of stock, which were not full paid, and recovered back their property, or its full value. If, however, after the defendants’ refusal to deliver full-paid stock, the plaintiff chose to retain the cash, was not that plainly an election to treat his property as well sold at $á7,500, plus the real value of 2,000 shares of full paid stock? —not plus its par value, nor plus the sum required to procure it, where such sum had no possible relation to its true or actual value, but plus the value of a due proportionate interest in the capital property, assets, and franchise of the company, measured by the bearing of 2,000 shares to the entire capital stock.
It is also claimed that when the defendants refused to deliver the stock the plaintiff had a right to procure it, and to charge the defendants with the costs. Assume that the plaintiff had this right,—and it is a mere assumption,—how is the situation altered ? In the first place, the plaintiff did not do this. But had he done it, the situation, so far as he is concerned, would have been unchanged. 1-Ie would have squandered $200,000 upon a worthless piece of paper; not, as argued, upon something which subsequently became valueless, but which was then, and ever since has been, valueless. He would have, pro tanto, supplied a bankrupt treasury, and enabled the company to pay about one-half of its debts, thus benefiting the defendants, who are ‘creditors of the company. For oit must not be overlooked, although the fact may have no special significance, that a part of the very property turned over to the defendants by the contract in question consisted of a claim of the plaintiff against this very company for some $12,000. How, if the plaintiff, upon paying this $200,000 into the company’s treasury, and taking the full-paid stock therefor, could have recovered from the defendants the amount so paid, how would he have been the gainer? The recovery would simply have offset the payment, and, in the end, the plaintiff would have found himself in the possession of 2,000 shares of full-paid but valueless stock. Thus, at last, he would have had what that stock was worth, and nothing more. Ultimately, therefore, he would have come into the inevitable sixpence. It comes to this, that in no way, manner, or shape, could the plaintiff have obtained from his contract aught save the full-paid shares, or the intrinsic value of such full-paid shares. The plaintiff undoubtedly saw where the execution of this idea with regard to procuring *847the stock would lead, for he falls back upon the proposition that the rulé of damages is the same whether he purchased the stock or not,—in other words, lie can recover, he thinks, the $200,000, although he has never paid a penny into the treasury of the company, or otherwise obtained the stock. The fallacy of this position plainly consists in treating the stock called for by the contract as “issued” stock, purchasable in the market. There the stock has a market value, and the wrong-doer can be charged with the sum required to replace it, within a reasonable time. Wright v. Bank, 110 N. Y. 237, 18 N. E. Rep. 79. This rule as to replacing, however, is predicated upon the idea of value—market value—throughout. The wrong-doer, where there has been a conversion, may be charged with the sum realized thereupon, or with a larger sum, if such larger sum is necessary to replace the stock within a reasonable time. But, even in that case, the replacing rule only applies to such replacing in the market, or at market rates and value. If there is no market value, the injured party cannot replace. He must then resort to proof of actual or intrinsic value, or to special damages, resulting peculiarly to him from the want of the thing converted. If, for example, the entire stock of a particular company, including the shares converted, have fallen into the hands of one man, who has withdrawn the stock from the market, it might well cost the injured party millions to replace what ordinarily would be worth no more than $10,000. But who would dream of his recovering the millions from the wrong-doer, especially if he liad never paid them? There is really no difficulty on this head when we keep clearly in view the fact that here the contract contemplated unissued stock, and the procurement of such stock by original subscription and purchase from the company. The replacing rule is necessarily inapplicable, simply because' the stock is not upon the market, and has no market value. The sum necessary to be paid to the company to procure it is no more the criterion of damages than the millions necessary to be paid to the monopolist, who has bought up the entire capital stock of a particular company, and made his own prices. The nominal par value may be less than the intrinsic value, and less than the market value, after the stock has been issued and put upon the market. On the other hand, it may be greater. The criterion must be either market or intrinsic value. All else is either fanciful, arbitrary, or punitive. Look where the plaintiff’s view would lead. The $200,000 are to go into his pockets, and not into the treasury of the company. That is leading us away from the contract, which calls for the putting of the cash into the company’s treasury in any event,—whether the shares are subscribed for and purchased by the defendants in execution of their contract, or, upon their failure, by the plaintiff, to procure what the contract called for. In either case, the defendants, as creditors of the company, would be entitled to share in the sum realized into the treasury. Now, however, the company is to get nothing, the plaintiff everything, and the defendants, as creditors of the company, are not even to have a dividend out of their own money in the plaintiff’s pockets. All this is to happen because the company is, and has been from the beginning, utterly insolvent,—substantially dead in its birth,—and its stock of the value of waste paper. And the conclusion, from which I dissent, while it undoubtedly proceeds from a natural sense of equity, is not in my judgment controlled by the guiding principles of indemnity. It results, rather, from a determination in some way to specifically enforce that part of the defendants’ obligation .which is disadvantageous to them, though not appreciably advantageous to the plaintiff.
The stock, of course, had no market value, because it had not been issued. It had no intrinsic value, because the company had no property of any value, •and was over $300,000 in debt. These 2,000 shares of unissued stock simply represented one-fiftieth part of the capital, property, assets, and franchise of the company,—in effect, one-fiftieth part of what was $300,000 worse than ■nothing. In no view of the pleadings and proofs, therefore, could the plain*848tiff recover substantial damages. If the stock had neither market nor intrinsic value, it might still, it is true, have had some special value to the plaintiff; and, if special damages were sustained by reason of the plaintiff’s non-pas-session of the stock, they were recoverable. Scattergood v. Wood, 14 Hun, 274; Suydam v. Jenkins, supra; Sternfels v. Clark, 2 Hun, 122. But he was bound to allege such special damages in his complaint, and prove them upon the trial. Parsons v. Sutton, 66 N. Y. 96. He has done neither. While I agree, therefore, that if the stock was specifically valuable to the plaintiff, though valueless to others, he could recover appropriate damages, still it con-' not be doubted that the burden of showing such special value was upon the plaintiff. “Any other rule of damages,” to quote an expression of the presiding justice, and to apply it in this connection, where, in my judgment, it properly belongs, “would relegate us to the realms of speculation alone.” Having failed in showing market value, intrinsic value, or value special to himself, the plaintiff’s proposition, that he is still entitled to $200,000 nominal par value, seems to me to be a most extraordinary one. It is nothing more nor less than a demand of exemplary damages. In my judgment there was nothing left upon the facts found by the referee (facts which were so found upon confident evidence) than an award of nominal damages.
There are two minor considerations advanced by the plaintiff which should perhaps be briefly noticed. One is the suggestion of an analogy between the rule he contends for and the principle which governs with regard to agreements .to deliver bonds and notes. There is here no real analogy, because the company, by the issue of its stock, makes no agreement to pay any specific sum. But if it did, the result would be the same. For,'while it is conceded that the measure of damages upon failure to comply with such contracts is prima facie the face of the obligation, yet it is equally well settled that the insolvency of the obligors or makers may be shown in mitigation, and the damages thus reduced to a nominal sum. Thayer v. Manley, 73 N. Y. 308, and cases there cited.
The remaining consideration is the plaintiff’s reference to that class of cases where the purchase price is specified in money, payable, however, in stock or some commodity; such, for instance, as in Johnson v. Hathorn, 2 Abb. Dec. 465. A different rule there applies, for the reason that the promise is to pay a fixed sum in a particular manner, not, as here, merely to deliver a specific thing. The present contract cannot well be tortured, by any subtlety of construction, into an agreement to pay $227,500 in any form or manner.
Upon all the other questions discussed I agree with the presiding justice, and, although I am in favor of affirming the judgment as to Brown, I think the order granting him an extra allowance should be reversed, without costs. It is not a case where the plaintiff should be burdened any more than the law requires.
The judgment as to Brown should therefore be reduced to the sum of $1,364.02, and affirmed for that amount, without costs.