Geo. Shiras, Jr., and Rasselas Brown, for plaintiff in error.
John Dalzell, for defendant in error.
MATTHEWS J.
This is an action of assumpsit brought by the defendant in error against the plaintiff in error and Thomas S. Blair, the latter not having been served with process. The declaration contained two special counts, as follows:
'For that whereas, heretofore, to-wit, on the fourth day of April, A. D. 1873, at New York, to-wit, in the Western district of Pennsylvania aforesaid, in consideration that the said plaintiff, at the special instance and request of the said defendant, would take and pay for, at the rate of $50 per share, four hundred (400) shares of the capital stock of the Blair Iron & Steel Company, a corporation organized under the laws of Pennsylvania, they, the said defendants, undertook, and then and there faithfully promised the said plaintiff, that if at the end of one year from said date he, the said plaintiff, should desire to sell the said shares at the said price by him paid for the same, they, the said defendants, would purchase the said shares of the said stock, to-wit, four hundred shares of the said Blair Iron & Steel Company, at the said price, towit, fifty dollars per share, and pay him, the said plaintiff, therefor at the said rate, together with interest at the rate of seven per centum per annum. And the said plaintiff avers that he, confiding in the said promises and undertaking of the said defendants, did afterwards, to-wit, on the day and year aforesaid, to-wit, at the district aforesaid, take and pay for four hundred (400) shares of said stock aforesaid, at the rate of $50 per share, amounting in all to a large sum, to-wit, the sum of twenty thousand dollars, ($20,000.)
'And the said plaintiff further avers that at divers times subsequently, to-wit, on the fourth day of April, A. D. 1874, and, to-wit, on the fourth day of April, A. D. 1875, in consideration that the said plaintiff, at the special instance and request of the said defendants, would waive his right of election to sell to the said defendants to said shares of the capital stock of the said Blair Iron & Steel Company, to-wit, four hundred (400) shares thereof, they, the said defendants, undertook, and then and there promised faithfully the said plaintiff, that, if at the end of one year from the said last-mentioned dates, respectively, to-wit, April 4, A. D. 1874, in the first instance, and April 4, A. D. 1875, lastly, he, the said plaintiff, should desire to sell the said hereinbefore mentioned shares at the said price by him paid for the same, they, the said defendants, would purchase the said shares of the said stock at the said price paid by him, the said plaintiff, therefor, to-wit, fifty dollars per share, and pay him, the said plaintiff, therefor at the said rate, together with interest at the rate of seven per cent. per annum. Yet the said defendants, not regarding their said promises and undertakings, although often requested so to do, and although the said stock was by the said plaintiff tendered to the said defendants, to-wit, on the day and year aforesaid, to-wit, at the district aforesaid, have not as yet paid to the said plaintiff the said sum of twenty thousand dollars, ($20,000,) but have hitherto wholly neglected and refused, and do still refuse and neglect, to-wit, at the Western district of Pennsylvania, to the damage of the plaintiff thirty thousand dollars.