Rose

This action was brought to recover $4,000 and interest, against the administrator of the estate of N. R. Vail, deceased, by L. J. Rose. A judgment was obtained, payable in due course of administration, from which and an order denying a new trial this appeal is taken. The cause of action, as stated in the complaint, grew out of an agreement on the part of the deceased, in his lifetime, to sell and deliver to the plaintiff, within a reasonable time, certain shares of stock, and the certificates thereof, in a mining corporation.- Before the mining corporation was incorporated, or any shares of stock or certificates were issued, the plaintiff paid the sum of $4,000 as the purchase price for one-half of the decedent’s (N. R. Vail’s) share of the stock which he was to have, after the same should be issued. It became impossible for Vail to deliver the shares or certificates therefor, which he had promised to the plaintiff, by reason of the issuance and service of an injunction granted by a court of competent jurisdiction in the state of New York. The plaintiff made a demand in writing some time after he had paid his money, and about the 30th of July, 1883, for the shares of stock and…