144 N.W. 721 | S.D. | 1913
It appears from the record that on and prior to the 6th 'day of April, 1910, a corporation, known as the Gilt Edge Maid Gold Mining Company, was indebted in the sum of $36,496 on account of various miner’s liens which had been reduced to judgment in one joint action; that -a foreclosure sale of the mining properties of said corporation -had- -been made thereunder on the 6th day of April, 1909, and -that the time for redemption from such foreclosure sa-le would expire on the 6th -day of April,
Some contention is made that this is- an action in conversion and- that conversion will not lie to recover the value of shares of stock that were never issued or never -cam-e into existence. We -are inclined to the view that this is an action for breach of contract and not -an action- in conversion. It is true that the complaint -de
It is contended by appellants that the contract alleged by respondents was never consummated; that said contract was made upon a condition that was never complied with. The negotiations preceding this alleged contract are contained in somewhat voluminous written correspondence and telegrams between the respondent Lowry and appellant Ford. This correspondence took place in February and March, 1910, and 'on its face purported to be carried on by Lowry on behalf of all the respondents and by Ford on behalf of -all the defendants, excepting the Gilt Edge Consolidated Mines Company, which at that time had not yet been organized. It will serve no useful purpose and would be impracticable to set out -such correspondence in full. The appellants, however, contend that the proposition made by defendant Ford to- respondents to induce respondents to refrain from making such redemption was only upon condition that the bondholders also agreed to a like proposition, while on the other hand the judgment holders, the respondents, contend that the two propositions (that is,' the proposition to 'the bondholders and the proposition to the judgment holders), as finally agreed upon, were wholly independent of each other. We are of the view that respondents are right in this contention. The first letter from Ford to Lowry, dated February 8th,. Which contained the initial proposition, did state that “if this -offer is accepted by them [meaning the bondholders], I am willing to make the same offer to yourselves [referring to respondents].”' This letter also contained the statement that the indebtedness be
Other assignments of error relate solely to- the appellants other than Ford. There were a number of grounds urged by respondents on their motion for a new trial. It does not appear from the record upon what particular ground the motion was granted.
The judgment and orders appealed from are affirmed, and the cause remanded for new trial as to defendants other than Ford.
POLLEY, J., takes no part in the consideration of this case.