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By the Court,

"Watson, J.:

It is only necessary to pass on tbe 6th assignment of error in the notice of appeal, as tbe conclusion we have reached in regard to it, virtually disposes of tbe rest. Tbe circuit court on its own motion, gave tbe jury tbe following instruction:

“Tbe burden of proving that there was no consideration for tbe note or due-bill sued on, is upon tbe defendant, and be lias offered no evidence to prove that fact,”

Tbe first part of this instruction relating to tbe burden of proof, upon tbe existing state of tbe pleadings, was erroneous. Tbe answer set forth tbe terms of the agreement which constituted tbe consideration for the contract sued on *64and averred non-performance by plaintiff of Ms engagements under it. Tbe replication traversed tbe averment of non-performance. This agreement bound the plaintiff to “sell, convey and transfer” to defendant three shares of stock of the Washington Oyster Company, as the consideration of the contract sued on, which was not negotiable.

Thus the issue as to performance was presented — the plaintiff, who admitted the agreement, affirming, and the defendant denying thfe proposition. The burden of maintaining it by proof was undoubtedly on the plaintiff. But the defendant could not by any possibility have been injured or prejudiced by this error. His own testimony shows conclusively, we think, that the plaintiff did perform Ms part of such agreement, and there is no evidence to the contrary, and this state of the evidence fully justified the concluding portion of the instruction. The defendant testified that the plaintiff delivered to him, duly endorsed, a certificate for the requisite amount of stock, which he accepted without objection or protest. This certificate disclosed upon its face that a transfer of the stock embraced in it could be made “on the books of the company” only after a surrender of the certificate duly endorsed. The by-laws of the company made provision for such transfer on its books, and the issu-. anee of new certificates to the purchaser upon such surrender and cancellation of the original certificate, and also declared that no such transfer upon its books should be made until the stock should have first been offered.for sale to the company.

In the first place we are by no means satisfied that the agreement of the parties contemplated any such transfer on the company’s books. Their conduct clearly indicates the contrary. But if it did, the defendant by accepting the endorsed certificate, put himself in a position to procure such *65transfer, and put it beyond tlie power of the plaintiff to do it, as he no longer had possession or control of the certificate which had to be re-endorsed to obtain the transfer. Such conduct clearly amounted to a waiver of that portion of the performance.

Judgment affirmed.

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