I agree with Mr. Justice Smith that no cause of action is shown for the breach of an obligation to purchase stock. But I think that the agreement was, in effect, that the defendants undertook to market this copper stock and sell a minimum of 10,000 shares a month in consideration of the option whereby the plaintiff agreed to let the defendants have the stock to sell at the stated option prices. The complaint fails, however, to allege that the plaintiff ever offered or tendered any stock to the defendants, without which the defendants of course could not venture to sell. The allegation that the defendants repudiated the agreement does not excuse the failure to tender stock, for the complaint affirmatively shows that the plaintiff was never able to procure any of the stock which the defendants were to sell. Plaintiff’s inability to procure the stock cannot be legally charged against the defendants, so as to excuse tender, for plaintiff’s *868procurement of the stock necessarily preceded any obligation on the part of the defendants to sell. Therefore, from this point of view also, the complaint is insufficient.
Merrell, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.