Many questions are argued by the briefs of the parties, which do not arise upon the case as it is presented in this court. Questions of law strictly, upon exceptions taken or questions made at the trial, are all that this appellate court can consider, and these in the precise form in which they appear upon the record. In the present case, the defendant moved to dismiss the complaint (for a nonsuit in substance) on the ground that the plaintiff had not proved an offer or tender of his money with the demand. This assumes that a demand was made, in proper form and at the proper time, as to each contract, and that the plaintiff was claimed to be at fault only in not then tendering the money. It is not competent to the defendant, after assuming the contrary at the trial and permitting the plaintiff and the court to act upon that assumption, now to say that there was no sufficient demand. (Binsse v. Wood, 37 N.Y., 526.) The elaborate argument of the appellant that the plaintiff was bound to prove a demand of performance by the defendant, at the time specified in the contract, will not, therefore, avail him. He is limited to the ground taken on the trial, to wit: That no offer or tender of the money was made with the demand; neither does the question arise that the verdict is unsupported by evidence. No request was made for a decision on that point, and none was given. The defendant chose to take his chance with the jury upon the facts shown, and no legal question is presented on which he can ask our interposition. The objection of not tendering the money I will now consider. The defendant agreed to deliver the *Page 586 shares of stock at such time as he should think fit, within sixty days, and the plaintiff agreed to pay him therefor the price specified in the contract. The defendant not tendering the shares of stock himself, the plaintiff requires him to deliver them, and he testifies that, at the time of this demand, he was ready to pay the price agreed upon if the defendant had delivered them. The defendant replied to the demand that he could not; he was not able. Under the circumstances, it was not necessary to make an actual production and formal tender of the money; it would have been an idle ceremony.
Assuming that the demand was properly and sufficiently made, and that, at the time and place of making the same, the plaintiff was ready and prepared to pay on his part, the cases of Coonley v. Anderson (1 Hill, 519, 523), and of Bronson v. Wiman (4 Seld., 182), are clear authorities that the plaintiff was not bound to make an actual production and offer of his money.
The exclusion of certain evidence is complained of, which it is said should have been admitted as tending to sustain the second defence set up in the answer. That defence contained an allegation, that the plaintiff and Hart, his broker, conspired with each other, falsely and fraudulently to make it known that the company, in question, was solvent, and that its shares were of great value, when the company was not solvent and the shares were not of any real value. It was further alleged, that the same parties caused to be issued a large number of fraudulent and spurious shares of the said stock, and did represent the same as good and valid shares of stock. The plaintiff, Wheeler, being under cross-examination, the defendant's counsel put to him the following questions: Were you not operating in a pool to control the whole of the Downieville gold mining stock? Ans. Do you mean as one of the pool, or a party in the pool? Defendant's counsel. Yes, sir. Ans. No, sir; I never was a party in the pool. Ques. Was not that stock controlled by a pool? Objected to; sustained and exception. It seems to be assumed in these *Page 587 questions, that to be a party to a pool, is a criminal, or at least a disreputable position. It may be, or it may not be. Whatever was its character, the plaintiff testified that he had nothing to do with it, and there was no occasion further to prosecute the inquiry.
The inquiry proceeds thus: Ques. Between the 24th of May, the time of making this first contract and the 5th of November following, at the time the price of the stock appears to be nearly three dollars a share, did you not either yourself, or in combination with other persons, claim to control the shares to the entire amount of the capital stock of this Downieville gold mining company, and have you not so stated? Ans. Well, that is a difficult question for me to answer; your question covers a good deal of ground; there are three questions in one. The question is repeated. Objected to; objection sustained and exception.
The question was not whether the plaintiff did actually control the stock; whether he claimed to control the shares of this stock, or whether he had so stated, was quite immaterial. The defendant had agreed to deliver certain of the shares at a price fixed, and had failed to do so. Whether the plaintiff boasted that he controlled the entire capital of the company, was not of the least importance to the question involved in the trial. There was no issue in relation to such claim in the pleadings, nor any legitimate question on the trial.
At a subsequent recross-examination of the same witness, the defendant's counsel asked him these questions: Did it not (the price of the stock in question) fall almost immediately after November 5th? Ans. It fell in November. Ques. To a great extent? Ans. Yes, sir. Ques. And did it fall below forty cents a share? Ans. During the month of November, I think it did. Ques. What occasioned the fall? Objected to; objection sustained and exception. It is claimed, if I understand the argument, that this evidence was competent under the second answer, as tending to show a fraudulent conspiracy by the plaintiff and others to elevate the stock in *Page 588 question. I do not perceive how it shows it or tends to show it. The price of the stock fell during the month of November. How could this fact, or the inquiry of what occasioned its fall, tend to show that the plaintiff had made false representations as to its value, or that he had aided in an over issue of its shares. There is no connection between the circumstances. No such object or connection was avowed on the trial, and the defendant cannot now put forth what he did not there pretend.
The doubtful questions on the trial, were the questions of fact. These were sharply contested, and the jury found them against the defendant.
The judgment should be affirmed with costs.