41 W. Va. 686 | W. Va. | 1896
This was a suit in equity brought by D. E. Hissam, in the Circuit Court of Cabell county, against M. F. Parrish, S. J. Kane, S. W. Neville, and A. H. Nagle, on the 23rd day of May, 1893, praying that the defendants, and each of them, be required to specifically perform a contract bearing date the 28th day of September, 1891, a copy of which is exhibited with the plaintiff’s bill, and which agreement purports to have been made between D. F. Hissam, of the first part, and the Milton Manufacturing Company, of the second part, but which agreement appears to have been signed and sealed by D. F. Hissam, M. F. Parrish, S. J. Kane, S. W. Neville, and A. H. Nagle.
The plaintiff’s bill alleges that the defendants and one W. J. Miller formed themselves into a company, known as the “Milton Manufacturing Company,” for the purpose of buying and selling timber, cutting saw logs, planing and dressing lumber, and for the manufacturing of doors, sash, frame, etc., and that the same was incorporated under the laws of the state of West Virginia, in the name and was knowu as the Milton Manufacturing Company, as above set out; that the stock of said company was composed of-shares of stock, at one hundred dollars per share; that, before the creation of said corporation and the formation of the aforesaid company, the said defendants, and each of them, for the purpose of creating said corporation and formation of said company as aforesaid, and inducing complainant to take stock in said company to the amount of eight shares, of one hundred dollars per share, entered into a written contract with complainant, signed by him and
The contract, a copy of which is exhibited with the bill, reads as follows: (Exhibit No. 1): “Article of agreement
The defendants demurred to the plaintiff’s bill, which demurrer, on consideration, was overruled. The appellants filed their answers. Depositions were taken and filed, and on the 21st of December, 1893, the cause was heard upon the whole record, and the court decreed that the plaintiff' was entitled to the relief prayed for, and directed that the defendants should specifically perform said contract.
The first error relied on by the appellants is as to the action of the court in overruling their demurrer to the plaintiff ⅛ bill, and requiring them to answer. In discussing the questions raised by this demurrer, the question which first presents itself is whether the contract which is made a part of the bill is such as calls for specific enforcement in a court
Is there anything in the case under consideration which would, in accordance with these principles, give jurisdiction to a court of equity? The entire demand asserted by the bill is for the payment by the defendants for eight shares of the stock of the Milton Manufacturing Company; and we can see nothing which would prevent the collection of the amount in an action of covenant or assumpsit if the plaintiff could show himself entitled to recover the amount. Again, Pomeroy, in speaking of the essential elements and incidents which entitle a party to specific performance, states the law as follows, in section 1405, vol. 3, of his Equity Jurisprudence: “Assuming that a contract has been completely concluded, and that it belongs to a class capable of being enforced, it must still possess certain essential elements and incidents, in order that a court of equity may exercise the jurisdiction to compel its performance. Some of these elements affect its validity; others, its equitable character. It must be upon a valuable consideration. It must be reasonably certain as to its subject-matter, its stipulations, its purposes, its parties, and the circumstances under which it was made. It must be, in general, mutual in its obligations and its remedy.” Can we say that the contract we are considering meets with these requirements? We have attempted to show its want of mutuality, for the reason that a sale of the stock was optional with the plaintiff, and for that reason couid not be enforced against him. Was there any consideration moving from the plaintiff for the promise on the part of the defendants to purchase his stock at one hundred dollars per share ? It is true that the plaintiff alleges in his bill that, before the creation of said corporation and the formation of said company, the defendants, for the purpose of creating
But, if there should be any doubt upon that proposition the bill should have been dismissed at the hearing, for the reason that the contract proved is not the contract alleged. In the bill the plaintiff charges that, for the purpose of creating said corporation, and forming said company, and inducing him to take eight shares of stock at one hundred dollars per share, the defendants entered into a written contract with him, agreeing to appoint him bookkeeper and general manager of said company, for the period of one year from the beginning of the operation of the business, and bound themselves to purchase the stock of. plaintiff, and pay him therefor at the rate of one hundred dollars per share. The bill, however, omits to state that the purchase by the defendants of his stock at that price was tobe at plaintiff’s option, which appears on the face of the contract. And the plaintiff, in giving his testimony in the case, when asked, “What consideration did you pay the defendants for executing to you the contract sued upon ?” answered, “None;” and in reply to the question, “Was it not understood between you and them that you were to work one year for the company as bookkeeper and manager thereof, in consideration of their agreeing at the expiration of said year to buy the eight shares subscribed for by you ?” he says: “I do not consider that that was the consideration for . which I was to work. I was to receive thirty five dollars per month for my work.” And, further on in his testimony, he states he was working for the com
In the light of these authorities, and for the foregoing reasons, the decree complained of must be reversed, and the bill dismissed, with costs to the appellants, but without prejudice as to such proceedings at law as the appellee may be advised to take.