129 Minn. 335 | Minn. | 1915
June 7, 1910, plaintiff bought from Minnesota-Arizona Copper Co. 4166 shares of its capital stock for $2,500. In the deal he obtained from the company a contract by which he could exchange these shares for certain other shares in another corporation, but if he did not choose to exercise this privilege, on or before April 1, 1912, he could avail himself of this provision: “It is hereby further agreed that the undersigned will refund to the said Iloban the said sum of twenty-five hundred ($2500.00) dollars on June 8, 1912, on thejcgs. turn of said stock of the Minnesota-Arizona Copper Co., properly assigned ; provided, however, that the said Iloban shall first give rvritten notice to the undersigned of his election to accept said refund on or before April 8, 1912, and time is the essence of this agreement.” The company executed the agreement by its first vice-president, Martin E. Tew, and its secretary. Thereto was subjoined this guarantee signed by the defendant: “For value received I hereby guarantee the performance of the above contract.” The action is upon this guarantee. Plaintiff alleged that notice of election to demand a refund of the $2,500 was duly given to the company and to defendant, on or about April 6, 1912, and prior to April 8, 1912. The defendant expressly denied that the notice was given to the company with
Defendant’s liability was secondary only, hence plaintiff was required to establish a breach by the copper company, of its contract with him, before recovery could be asked against defendant upon his guarantee. A prerequisite to showing a breach, in failing to refund the $2,500, was proof that plaintiff served upon the company, on or before April 8, 1912, a written notice of an election to demand and receive said refund. Notice to the guarantor of such election was not required, nor could such notice served on him dispense with service upon the company. The appellant rightly states that the sole issue is: “Was the notice given through the mail by the plaintiff to the Minnesota-Arizona Copper Company on the 6th day of April, 1912, a sufficient and substantial compliance with the terms” of the contract? It is conceded that the notice served did not actually reach the company or any of its officers earlier than April-10, 1912.
These are' the facts upon which plaintiff predicates the claim of timely service: When plaintiff purchased the shares, the certificate, together with this contract and guarantee, bearing date June 7, 1910, was mailed from Willmar, Minnesota, inclosed in a letter dated June 8, 1910, signed by Martin E. Tew, the first vice-president of the company. The letter head indicated that the operating office of the company was in Arizona and its financial office at Willmar, Minnesota. The names of the directors and officers of the corporation were also given, and in such manner that the inference was that Mr. Tew and the secretary resided at Willmar. No attempt was made by plaintiff until April 6, 1912, to ascertain the whereabouts of any officer of the company. On that day he was informed by defendant where such officers were to be found in California. Thereupon plaintiff mailed at Benson,' Minnesota, the place of his residence, three notices of his election to ask a refund of the $2,500. One of these notices was addressed to Martin E. Tew at Los Angeles, California, and reached Mr. Tew on April 10, 1912. One was addressed to him
One of appellant’s contentions is that by their course of dealings the parties selected the mail as the proper medium by which to serve notice. This is based on the fact that the company made use of the mail in sending the contract and certificate of stock to plaintiff some two years before. We cannot assent to the proposition that either this circumstance, or the fact that the office and officers of the company had in the meantime vanished from the state, authorizes an inference that the company consented to be served by depositing the notice in the United States mail. No doubt, in the absence of anything to the contrary in the contract, the mail could be used as the medium of service, but, if it be used, the service is not made until the notice is in the hands of the one intended to be served.
Neither do we think that there is anything in the situation, or the contract, which would warrant the court in saying that the company, or its officers, could not withdraw from the state without notifying plaintiff. There is no pretence that leaving this state was to evada service, or was with any intent to deceive plaintiff.
It is also maintained that section 7745, G-. S. 1913, is applicable to a notice of this kind. We think it plain that this section deals exclusively with the service of pleadings, notices and the like in legal actions or proceedings, and has no reference to notices under private contract, provisions concerning which there is no statutory requirement.
Under this contract plaintiff had the option to demand a return to him of $2,500, provided he seasonably gave written notice of his election to exercise the option. The contract expressly makes time the essence of the agreement. The giving of the notice was a condition precedent to the right to a refund. No facts were pleaded giving the court any right to abrogate the clear language of the contract. Steele v. Bond, 32 Minn. 14, 18 N. W. 830; Bohn Mnfg. Co. v. Lewis, 45 Minn. 164, 47 N. W. 652; Alworth v. Gordon, 81 Minn. 445, 84 N. W. 454; Robinson v. Northwestern Nat. Ins. Co. 92 Minn.
This is not a case where there is room for inference that the parties had- selected the mail as a medium of giving notice, and in that respect it is unlike Robinson v. Northwestern Nat. Ins. Co. supra, and Manufacturers & Merch. Mut. Ins. Co. v. Zeitinger, 168 Ill. 286, 48 N. E. 179, 61 Am. Rep. 105; Howardv. Daly, 61 N. Y. 362, 19 Am. Rep. 285. In Reed v. St. John, 2 Daly (N. Y.) 213, cited by appellant, a mailed notice of an option to take an extension of a lease was held served in time, although it did not reach the landlord until after the date stipulated for serving, but the issue was raised in a suit in equity for relief, and the court found that the service was according to the suggestion of the landlord and an assurance from him thát a notice, mailed at the time the notice in question was mailed, would reach him in time. No element of estoppel or waiver is presented either by pleading or proof. The company was a foreign corporation, and if such corporation opens an office in this state no law requires it to continue to maintain the same here.
Had the amendments of the findings, asked for by plaintiff, ’been granted, it would not have altered the conclusion of law. Our conclusion is, that upon the pleadings and all the stipulated facts, the decision and order of the trial court are right.
Order affirmed.
