C. Louis Watjen et al., appellants, v. Ashbel Green, receiver of the North River Construction Company, respondent

Decree affirmed, for the reasons given by the chancellor.

Dixon, J.

(dissenting).

I agree, in substance, with the opinion of the chancellor in this-cause, down to the point at which he regards the receiver’s proposition to Fatman & Co. as an offer to perform the contract for the delivery of bonds. I deem that proposition as, in effect, a notice that he would not perform the contract, and, consequently, as relieving Fatman & Co., and, therefore, their principals, the appellants, from the obligation to make formal tender of the residue of the price and formal demand of the bonds. It also-constituted a breach of the contract on the part of the receiver, and, hence, fixed the time at which the appellant’s damages should be ascertained.

These damages the chancellor correctly estimates at $650. To-this sum I think they have a legal right; and .it now appearing-that, after the satisfaction of all other debts against the corporation, the receiver has in hand a considerable sum of money which the chancellor is about, not to turn over to the corporation, but to distribute among the stockholders in final settlement of the-corporate affairs and dissolution of the corporation itself, I think,. on the simple equity that debtors should pay their debts, the appellants ought to be paid what is legally due. The fact that other creditors agreed to accept and did accept fifty per cent, of their legal claims in full satisfaction, should not in the least impair the rights of the appellants.

In my judgment, the decree should be reversed, and a decree entered giving the appellants $650 and interest.

For affirmance — The Chief-Justice, Depue, Garrison, Mague, Reed, Van Syckel, Werts, Bogert, Brown, Clement, Smith, Whitaker — 12.

For reversal — Dixon—1.