211 P. 314 | Mont. | 1922
prepared the opinion for the court.
On December 18, 1909, plaintiff below (appellant herein) and the defendant entered into an agreement which had as its object the purchase by the plaintiff of the defendant of thirty shares of stock in the defendant corporation, payment for the said thirty shares to be made out of dividends and net earnings of the Great Falls district; the plaintiff having some official connection with the Great Falls district of the defendant company.
On March 10, 1914, the defendant, by appropriate action, increased the capital stock of the company $50,000, and adopted the following resolution: “All stockholders of the Mutual Oil Company shall exercise the right to subscribe for- their pro rata to the new issue of five hundred shares common stock and pay cash for same within ten days from date of meeting, March 10, 1914, after which time the officers shall have the right to dispose of said stock to other stockholders or parties.”
On March 10, 1914, the plaintiff was the owner of three shares of the common stock of said defendant, about which there was no question. It appears that no notice of the action of the defendant company on March 10, 1914, reached the plaintiff until the annual meeting of the company on April 6, 1914, at which time the plaintiff was present and voted upon the adoption of the minutes of the meeting of March 10, 1914. On April 11, 1914, the plaintiff wrote the defendant the following letter:
“Gt. Falls, Mont., April 11, 1914.
“Stock Certificates No. 121, 122 & 174.•
“Mutual Oil Co., Kansas City, Mo.
“Gentlemen: As per your request I am enclosing stock certificates herewith to be exchanged for new certificates showing the capital stock of the Mutual Oil Co., to be $300,000.
“I am also enclosing hereivith my check for $100.00 for which please send me the shares of common stock to which I am entitled under the plan of enlargement of capital stock;
“In regard to the stock to which I am entitled, for the 30 shares under which a settlement is to be had later, I will want 10 shares more of the common stock. These 10 shares I will be prepared to take at any time if you will kindly advise me when you are ready to deliver them.
“Very truly yours,
“H. G. Hills.”
There was no reply by the defendant company to that portion of the letter referring to the thirty shares of stock, nor to the plaintiff’s request for ten shares more of the common stock.
There can be no doubt that for some time previous to March 17, 1917, there had been a controversy between the plaintiff and defendant over the agreement between the plaintiff and defendant for the purchase and sale of the said thirty shares of stock, for on that date, to-wit, March 17, 1917, there was a judgment entered in the United States district court, adjudging and decreeing the plaintiff to be entitled to the possession and delivery of said thirty shares of stock, upon condition that the balance of the purchase price then due and unpaid should be paid. It is also apparent that the litigation did not end at this time, for on March 26, 1918, plaintiff’s attorneys wrote the defendant that the United States circuit court of appeals for the ninth circuit had affirmed the judgment of the lower court.
This case, here on appeal, was tried to the court without a jury, and submitted upon an agreed statement of facts, including all facts admitted by the pleadings. Upon this agreed statement of facts the court made conclusions of law, among them one to the effect that the plaintiff had lost his right to purchase the ten additional shares for which he contended. The plaintiff prosecutes this appeal from the judgment of the court.
The resolution for the issuance of the stock exacts payment of the stockholder desiring the additional stock within ten days after March 10, 1914. It is conceded that the plaintiff herein
It is likewise true, and the settled law of this state, that where a tender is required by any obligation, and it is apparent that that tender will be refused, such tender is not necessary. All that is required in such a situation is that the party making the tender should hold himself ready, willing and able to perform. (Christiansen v. Aldrich, 30 Mont. 446, 76 Pac. 1007; Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918.) It becomes important, therefore, to determine whether or not the plaintiff was within the principle of law requiring him to hold himself ready, willing and able, rather than to make a tender. The amended answer of the defendant company disposes of any doubt as to the attitude of the company relative to the right of the plaintiff to purchase the ten additional shares. In the very first paragraph of the amended answer it is set up that: “Plaintiff was not to become, and did not become, the owner of said thirty shares of stock or become entitled to the transfer, issue, or possession of any certificate
We conclude from these facts that, even though the plaintiff had remitted $1,000 with his letter for the ten additional shares of stock, the same would have been refused and disregarded by the defendant company, and that therefore all that the plaintiff was required to do was to hold himself ready, willing and able to pay, and that he did so is stipulated as a fact.
But this situation is change'd when the litigation relative to the thirty shares of stock had been terminated by decision of the circuit court of appeals of the ninth district. The question of who was the owner of the thirty shares of stock
The judgment is assailed in other particulars, but a decision of those points is not necessary in reaching a conclusion in this matter, and we do not pass upon them.
We recommend that the judgment of the lower court be affirmed.
Per Curiam: For the reasons given in the foregoing opinion the judgment is affirmed.
Affirmed.