party, although the stock was not to be delivered by her for forty days, held that the sale was complete upon acceptance of the offer to sell.

ID.-ID.-DEATH OF VENDOR.-Where a party to whom stock is offered at a certain figure accepted the offer, and thereupon, before the vendor's death, deposited a notification in the mail addressed to the vendor, which letter was not received by the vendor before her death, held that the death of the vendor did not affect the transaction. The transaction was complete when the offer was accepted.

ID.-FIDUCIARY RELATION.-DIRECTOR AND STOCKHOLDER.-There is no fiduciary relation existing between the director and a stockholder of a company in regard to transactions affecting the sale of its stock by a stockholder to a director, and so long as the director remains silent and does not actively mislead the stockholder, the transaction cannot be set aside for fraud, and an answer setting up such facts raises no issue of fraud. PRINCIPAL AND AGENT.--SALE.-CONFIDENTIAL RELATION.-The fact that a vendor has written to a person as a friend, asking advice and soliciting friendly offices in the sale of certain stock, and no relation of principal and agent was created beyond this, and thereupon the person written to himself makes an offer for the stock, knowing certain facts which will probably cause a rise in the price of the stock, which offer is accepted by the vendor, who writes to the purchaser to that effect, and the purchaser replies that he will pay the money upon delivery of the stock, which the vendor states will be made in forty days, held that the sale was complete, and not affected by the death of the vendor before receiving the purchaser's last letter, that no confidential relation existed between the vendor and purchaser, even although the vendor was a stockholder and the purchaser a director in the corporation whose stock was the subject of the transaction.

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial, Hon. Charles S. Zane, judge.

The whole correspondence shown in evidence between deceased and plaintiff was as follows: Dec. 31, 1889, Mrs. McKibben to Haarstick: "As I think I may wish to dis

pose of the Miss. Valley Trans. Co. stock, will you be so kind as to inform me if there is a market for such stock and what the market value." Jan. 2, 1890, Haarstick to Mrs. McKibben: "In reply I would state that it might take thirty or sixty days to place so large a block of the stock, but I think I could place it in that time at from $65 to $70 per share. If you conclude to dispose of your interest, and will send the stock to me, I will be pleased to sell it for you." Jan. 10, 1890, Mrs. McKibben to Haarstick: "I am in no hurry to dispose of it, and may conclude not to do so. Will be in St. Louis some time before the 20th, when I shall take the pleasure of calling on you." Jan. 27, 1890, Mrs. McKibben to Haarstick: "Upon reflection I think the Mississippi Valley stock worth more than the price you named. Let me know if that is the very best you can do." Feb. 5, 1890, Haarstick to Mrs. McKibben: "With regard to our barge stock, all I can say is that the figure I mentioned is about as much as you could realize, in my opinion. We are beginning to feel a new all-rail Kansas City to N. O., the competition of which via Memphis, I fear, will eventually injure us badly." Feb. 1, 1890, Haarstick to Mrs. McKibben, a letter making no mention of the stock. Feb. 7, 1890, Haarstick to Mrs. McKibben, a letter containing no mention of the stock. Feb. 10, 1890, Mrs. McKibben to Haarstick: "I have concluded to sell Miss. Valley Trans. stock for $100,000 (one hundred thousand dollars). If you accept, how long will it take to complete the sale?" Feb. 19, 1890, Haarstick to Mrs. McKibben, the letter set out in the opinion. Feb. 25, 1890, Mrs. McKibben to Haarstick, the letter set out in the opinion; and March 1, 1890, Haarstick to Mrs. McKibben, the letter set out in the opinion.

The court found the following facts: That the sale for $92,500 was complete by the letters dated February 25, 1890, and March 1, 1890, and that the stock on April 10,

1890, was of the value of $104,500 and plaintiff was damaged in the sum of $12,000, with interest, besides other facts necessary to support the judgment.

Messrs. Bennett, Marshall and Bradley, for the appellant.

The contention of plaintiff that an uncommunicated assent completed the contract is supported by the weight of authority in this country, but not by the best reasoned authority. Brogden v. Metropolitan Railway, 2 App. Cas. 688; Telegraph Co. v. Colson, L. R. 6 Exch. Cas. 108, Reedpath's Case, L. R. 11 Eq. Cas. 86; McCullough v. Insurance Co., 1 Pick. 278, Langdell on Contracts (2 Ed.) 989-996. A confidential relation existed between the parties, because stock holder and director. The contrary view is supported by two cases. Carpenter v. Danforth, 52 Bart. 581, and Tippecanoe Co. v. Reynolds, 44 Ind. 509. The first case is criticised and disapproved in Perry's note to 1 Story Eq. Jur., sec. 229 (12 Ed.) But this case is differentiated from those two cases by the fact that there was a special confidence reposed. Tate v. Williamson, L. R. 2 Ch. App. 55; Mallory v. Leach, 35 Vt. 156 (82 Am. Dec. 625).

The court erred in failing to find upon the issue of fraud tendered in the answer. Peo v. Forbes, 51 Cal. 628, 2 Comp. Laws 1888, sec. 3379, Hayne on New Trial, 718722; Campbell v. Buckman, 49 Cal. 367; Railway Co. v. Reynolds, 50 Cal. 93; Dowd v. Clarke, 51 Cal. 263; Everson v. Mayhew, 57 Cal. 144.

Messrs. Richards, Moyle and Richards, and Messrs. Brown and Henderson, for the respondent.

MINER, J.:

The record in this case presents the following facts: Joab Lawrence died testate, December 28, 1888, being at the time of his death the owner of 1,414 shares of the capital stock of the St. Louis & Mississippi Valley Transportation Company, a Missouri corporation. His widow and devisee thereafter remarried, and became Sarah McKibben. The plaintiff was president of the transportation company, an acquaintance of Joab Lawrence and Mrs. McKibben, and who assisted her in other matters of business in St. Louis, when requested, and who offered his services to her in any matter of business connected with the ascertainment of the true signature of Mr. Lawrence, as a friendly act, but without any compensation. The plaintiff resided in St. Louis; had been president of the transportation company since its organization, in 1881, and was reasonably familiar with its business and finances. The stock of the company was not listed on any stock exchange; had a market in St. Louis alone, and among those acquainted with the business of the company. Mrs. McKibben resided in New York. In the months of January and February, 1890, the financial condition of the transportation company was good, and its business reasonably prosperous, although in the latter month it met with a serious loss, in the sinking of the Port Eads, a steamer towing its barges. The plaintiff's witnesses swear that on March 10, 1890, stock in the transportation company was worth from $65 to $70 per share, and on April 10, 1890, from $75 to $80 per share. On June 21, 1890, the company paid a dividend of 6 per cent., or $6 per share, on its capital stock, which was the highest dividend ever paid by it, with the exception of one of equal amount in 1884. On December 31, 1889, Mrs. McKibben, then residing in New York, wrote to plaintiff, at St. Louis, that she

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might wish to dispose of the transportation company stock, asking if there was a market for it, and what the market value of the stock was. On January 2, 1890, the plaintiff replied that it might take thirty or sixty days to place so large a block of the stock, but I think I could place it in that time at from $65 to $75 per share. If you conclude to dispose of your interest, and will send the stock to me, I will be pleased to sell it for you." On January 10, 1890, Mrs. McKibben replied that the "captain" (her late husband, Joab Lawrence) always quoted the stock at par, and she might conclude not to sell. On January 27, 1890, she again wrote to plaintiff concerning other business, concluding as follows: "Upon reflection, I think the Miss. Valley stock worth more than the price you named. Let me know if that is the very best you can do." On February 5, 1890, the plaintiff replied, answering her former letter, and concluding as follows: "With regard to our barge stock, all I can say is that the figure I have mentioned is about as much as you could realize, in my opinion. We are beginning to feel a new all-rail Kansas City to N. O., the competition of which via Memphis, I fear, will eventually injure us badly." On February 10, 1890, Mrs. McKibben wrote plaintiff as follows: "I have concluded to sell Miss. Valley Trans. stock for $100,000 (one hundred thousand dollars). If you accept, how long will it take to complete sale?"

On February 19, 1890, plaintiff wrote Mrs. McKibben, in substance, that the transportation company had met with a "terrible loss at Memphis; the Port Eads having struck a pier of the new bridge there, and being a total loss. In addition, one barge was sunk, besides another badly hurt. The tow was caught and landed, but it may cost us considerable for salvage, and as we carry our own insurance it may take all of $75,000 to make good the loss. This is equal to four per cent. on our stock, and in addi