1. The ruling of the presiding judge, as to the effect of the allegation of a demand in the declaration, not denied in the answer, was in strict conformity to the St. of 1852, c. 312, § 26. Alleged with substantial precision and certainty, and not denied in clear and precise terms, it must be deemed to be admitted.
2. If the iron had been delivered under the contract to the defendants by Fuller, such delivery of the iron would be payment for the stock. If so, the agreement to accept the order to transfer to the plaintiffs would not be within the statute of frauds. It would not be an agreement to sell and transfer stock. The stock would have been already purchased and the consideration paid. It would be but an agreement to transfer the stock to which Fuller was entitled to the plaintiffs.
But if, on the other hand, the iron had not been delivered, it would be an agreement for the sale and delivery of so much stock, the evidence of which should, under the fourth section of the statute of frauds, have been in writing. Rev. Sts. c. 74, § 4.
3. The true measure of damages was the value of the stock at the time when, under the contract, it should have been delivered. No time being specified in the order for the delivery, the time when the demand was made must be the point at which the value is to be fixed.
New trial ordered'.