78 Mo. App. 1 | Mo. Ct. App. | 1899
This action is based on a bill in equity to compel defendant to transfer to plaintiff three shares of' stock in the Webb City Ice & Storage Company. The trial court gave plaintiff a decree and defendant appeals.
The business seems to have proved a success and defendant having reimbursed himself for moneys advanced, he, before the commencement of this action, reassigned and transferred to plaintiff the one hundred and seventy-one shares which plaintiff had assigned to him. But he refused to assign to plaintiff three additional shares which plaintiff •claims the contract provides for and together with the one hundred and seventy-two shares which he did assign, as just stated, would make plaintiff the owner of one half the stock as contemplated by the contract. This action is to compel •defendant to specifically perform that part of the contract and assign to him the three shares, the number necessary to make plaintiff the owner of one half the stock.
The defendant, while not denying the contract sued on, set up what he alleges was a later one between them and wherebythe first was superseded. The difference between the two consists in the latter omitting the clause as to assigning plaintiff one half the stock. We will dispose of this by stating that this contract was properly regarded by the trial court as an attempted copy of the original with the clause as to the transfer of one half the stock inadvertently omitted.
Defendant in his effort to overturn the decree rendered for plaintiff in the trial court has stated a great many general propositions pertaining to the principles of equity as applied to an action for specific performance. These we do not care to question. "What we shall rule will be within the limits of all the principles stated which can find practical application to the case presented.
It so happens, in this case, that added to what stock plaintiff owned and which was retransferred to him by defendant as directed by the contract, it only required the transfer of three more shares to put plaintiff into the ownership of one half of all. But the chief value would not be the money value of. the three shares, but rather the power and influence it would give plaintiff in the management and direction of the corporation. By becoming owner of one half the stock plaintiff would be enabled to check any proposed management of the company’s affairs which he might think was detrimental. And so it appears clear to us that this is not like a case where one should merely seek the compulsory transfer of some, shares of stock, which would only have the effect of putting him into possession and ownership of such shares the loss of which might readily be made good by damages in the shape of the money value of such stock. We think, therefore, that the case is exceptional and that plaintiff has no adequate remedy at law. We are fully justified in this .view by Cook on Stock and Stockholders, sections 337, 338. And we likewise regard the case of Jones
In our opinion the facts of this case, as demonstrated by the acts of the parties, if not the words of the contract itself, show that furnishing the water contract to the ice company was not regarded as being dependent upon, or as a condition precedent, or concurrent with the transfer of the stock now in question. In such case the courts should not so regard it. Larimore v. Tyler, 88 Mo. 661. Dependence or independence of covenants is generally a question of intention. Freeland v. Mitchell, 8 Mo. 487. The water has been in fact furnished by the water company during the series of years elapsing since the date of the contract. The ice com-.; pany has gone on in business chiefly under the direction of ■ defendant. It has made the profits out of which moneys-advanced by defendant have been repaid to him. He has retransferred to plaintiff the large block of stock aforesaid.', which plaintiff transferred to him and the failure to furnish the free water contract was not considered by defendant in such light as to prevent him from carrying out every provision of his obligation save the one now seeking enforce-
Again the agreement to obtain the water contract was only a part of the consideration of the contract between these parties, and therefore the agreement to transfer the stock did not depend on the contract. The rule is that where the covenant goes only to a part of the consideration, it is independent. Turner v. Mellier and Sawyer v. Christian, supra.
What we have said in the foregoing substantially disposes of the questions presented. We have not been able to discover any reason for interfering with the decree of . the trial court and hence affirm the judgment.