Fast v. Baker
76 Ind. App. 677
Ind. Ct. App.
1921
Check Treatment
Nichols, J.

Action by' appellee against appellants upon a written contract. Finding and judgment for appellee. Appellants rely for reversal upon error of the court in overruling their demurrer to the complaint, upon error of the court in each of its two conclusions of law, and in overruling their motion for a'new trial. The averments of the complaint are, so far as involved, found as facts in the special finding, which in substance is as follows:

On June 9, 1916, appellee was the owner of seventy shares of the capital stock of the Farmers National Life Insurance Company of America, of the fair value of $9 per share and of a total value of $630. On said iday the appellants undertook to trade certain stock in *679what was known as the Telbax Manufacturing Company, which at the time of said exchange was worthless and of no value whatever, and to induce the appellee to exchange his insurance stock, appellants entered into a written contract or undertaking with appellee which is as follows: “June 9, 1916. We the undersigned agree to purchase and turn over to Daniel S. Baker 70 shares of National Life Insurance Company stock upon a 30 days notice of his desire to have same instead of 70 shares preferred and 35 shares common stock of the Telbax Mfg. Co. of Huntington, Indiana. Such notice to be given 60 days from June 9, 1917. Farmers National Life Stock to be given Daniel S. Baker upon the turning over the above mentioned stock of the Telbax Mfg. Co. without cost to Daniel S. Baker. (SIGNED) C. 0. Conner, J. W. Culp and A. C. Fast.”

They delivered such contract to appellee, and within sixty days after June 9, 1917, appellee served notice on appellant, Fast, that he desired to secure his stock in said insurance company. At the time appellee notified Fstst he desired to have returned such shares of stock, said Fast failed and negle.cted to return such stock. Appellant Culp immediately after securing súch insurance stock, on June 9, 1916, disposed of the same to innocent purchasers and a notice to said Culp would have been unavailing. Said Culp did know that appellee demanded back his insurance stock, at the time, from said Fast, within such sixty days after June 9, 1917. C. O. Conner had left the state and gone to parts unknown and a notice on him was impossible; he and appellant Culp also failed to return said insurance stock.

On or about June 9, 1917, the said Telbax Manufacturing Company had gone into bankruptcy and the stock was worthless and no dividend was ever paid to shareholders thereon, and the company ceased business.

*6801, 2. *679Questions presented as to the unilateral, and the op*680tional feature of the contract, its mutuality, its consideration, and its acceptance by appellee have all been determined against appellants in the case of Culp v. Holbrook (1920), ante 272, 129 N. E. 278, the appellants therein being the same as in this case. We do not, therefore, need to consider such questions further, but on the authority of that case decide them against appellants. Appellants contend that the complaint is bad because it fails to aver that the contract which was unilateral was delivered. No objection to this effect was contained in the memorandum with the demurrer. It is therefore waived. The special finding expressly says that the contract was delivered. There was no error in overruling the demurrer to the complaint.

3. Appellants next contend that the finding, is against appellee in that it fails to find that appellee tendered back the Telbax stock. The finding, however, finds that such stock was absolutely worthless. No tender was therefore necessary. The law does not require a useless thing. Hess v. Young (1877), 59 Ind. 379. Further, appellants had sold the insurance stock and they or their company which was bankrupt, had none of-it to return to appellee. It appears by the evidence that appellant Fast made repeated promises to get insurance stock to return to appellee but failed so to do. It is apparent that neither appellant was ready and able, or willing to perform his contract. They were therefore neither entitled to notice or tender. Nesbit v. Miller (1890), 125 Ind. 106, 25 N. E. 148.

4, 5. Error, if any, in permitting appellee’s witness, Biliter, to testify that the insurance stock was of the value of $40 was harmless, for from the amount of damages found, $1,400, it is apparent that the court was not influenced by such testimony. *681There was no contract price for the insurance stock, at the time it was to have been returned, and appellee’s damages were the fair value of the stock at the time of such failure to return it. There was ample evidence to sustain the damages assessed by the court. The judgment is affirmed.