Schultz v. O'Rourke

18 Mont. 418 | Mont. | 1896

HUNT, J.

The plaintiff is seeking to enforce the provisions of the agreement entered into between heiself and the defendant, O’Rourke, and, being dissatisfied, sues to avail herself of the right given to her under the contract to have the purchase price of $2,500 refunded to her, together with a sum equal to one-fourth of the profits of the business during the period of one year. The district court was of opinion that plaintiff had made out her case, and gave her a judgment. We will briefly notice the errors relied on by appellant, defendant.

The defendant objects to the testimony and findings to the effect that the agreement between the parties should apply to the Northwestern Brick and Supply company, and argues that it only applied to the original sale of the property of the Western Star Brick Yard and Brick Works.

We do not think the point is well taken. The concern in which the plaintiff bought a one-fourth interest was merged into the Northwestern Brick and Supply company. Shortly after the contract was entered into, the corporate stock of the new company was issued to plaintiff, .defendant, and other owners. This stock was received by the parties to the agreement, and took the place of the title of the property.conveyed. (Mayo v. Knowlton, 134 N. Y. 250, 31 N. E. 985.) It was satisfactorily established upon the trial before the referee that the parties agreed to this merger or transfer. Again, no issue was raised in the pleadings upon the averment of the plaintiff that the original company was merged into the Northwestern Brick and Supply company. The case was tried, too, upon the theory that the stock issued to the owners represented their title in the property made the subject of the agreement between the parties to this action. We therefore think that if a tender by plaintiff was necessary at all, 2,500 shares of the stock of the corporation formed was all that was necessary under the agreement to put the defendant (appellant) in statu quo.

The question of tender is by far the most important point in the case. The defendant urges that there never was a tender until trial, and no evidence of waiver by defendant. It appears by plaintiff’s testimony that prior to the expiration of the year at the end of which she could avail herself of her right to be repaid the §2,500 and to redeliver the stock to the defendant, she expressed dissatisfaction with the business. About 30 days before the expiration of the year, she took her stock, handed it to the defendant, and asked him to give her her money, and whatever the books showed her share of the profits might be. ' The defendant told her that she could have nothing. Plaintiff does not testify, nor does the evidence show, that she ever offered by technical tender to the defendant the stock at any time after March 29, 1893, and before the trial of the action, but it does appear that an account of Mrs. Schultz for the $2,500 was presented for collection to the defendant in March or April, 1893; that the defendant looked it over, and said he would pay the account whenever she paid her share of a promissory note on which they were together bound. The defendant himself testified that Mrs. Schultz did not notify him before the 29th of March that she was ready and willing to reconvey or relinquish her rights in the corporation, but admitted that he always told her that he would give her the original money that she had put into the investment; that these conversations occurred in December, 1892, or January, 1893, but that the plaintiff, told him she wanted a dividend. The defendant also admitted that he had had a conversation with Mr. Cotter, an attorney at law, representing the plaintiff, and said that he had told Mr. Cotter, after March 29, 1893, that there were certain moneys due by Mrs. Schultz for moneys loaned and other matters, and that when Mr. Cotter told him that Mrs. Schultz had directed him to settle the thing up, Cotter said : ‘ £I would try and settle up on that basis;” that plaintiff told him in April that she was dissatisfied, and wanted a dividend, but that she never took any stock to him before the 29th of March,. 1893, and never made an offer to deliver the stock to him. Mr. Cotter testified that about the time that the year expired under the contract he went to the defendant at the request of plaintiff to get a settlement of their matters; that he told defendant that plaintiff was anxious to settle the matter up; that defendant said, there was a note in the bank, and that, if plaintiff would pay her share on that note, he was ready to settle with her. Mr. Cotter said that he had no authority to accept anything but Avhat the contract called for, and could not make such a settlement. A day or two after that Cotter advised O’Rourke that he had better settle the thing up in some way, and that he would see Mrs. Schultz, to which O’Rourke replied he would have nothing to do with it.

From this evidence we do not think that there ever was a formal actual tender of any stock after March 29, 1893, until the trial. .The tenders made before that time were not good, because under the terms of the contract itself the defendant was not obliged to return to her the $2,500 invested until the expiration of one year. All such tenders were premature. Bowen v. Julius, (Ind. Sup.) 40 N. E. 700. There having been, therefore, no actual tender of the stock after the expira-ation of the year, until the trial at least, we must ascertain whether or not the'acts and declarations of the defendant dispensed with the formality of a tender.

Turning from theummediate question an instant, let us say that we are not convinced that under the terms of the agreement it was necessary for plaintiff, prior to suit, to make a tender by actually offering to defendant the pieces of paper constituting the certificates of stock before she could recover. (Pomeroy’s Eq. Jur. § 1407, and note.) The covenants of the agreement were mutual and dependent. If she were dissatisfied at the end of the year, then, and in that event, defendant agreed to refund to her the $2,500 she paid for her interest in the business, and she in turn agreed to reconvey to him such interest. The performances were to be simultaneous. That she was dissatisfied, and expressed such dissatisl action to defendant, is indisputably proven. Such being the case, is it not a fair construction of the contract to say that when she made known that dissatisfaction, it devolved upon defendant to pay or offer her the $2,500, agreed to be paid, and thereupon it at once became her duty to reconvey to him ? We think so. There was no express covenant on plaintiff’s part to tender, and it would seem that, where the covenants between the parties were mutual and dependant, the necessity of strict formalities by a tender before trial ought not to have been imposed upon plaintiff. (Holmes v. Holmes, 9 N. Y. 525; 12 Barb. 137; Irvin v. Gregory, 13 Gray, 215; Kane v. Hood, 13 Pick. 281.)

But, granting that plaintiff ought to have actually presented the certificates of stock to defendant after March 29, 1893, we think that the acts and declarations of defendant dispensed with greater formality than was observed. When he told Cotter that he was ready to settle when plaintiff paid her share on a certain note, not a liability of hers under the contract, and again thereafter, when approached for a settlement, said he would have nothing to do with the matter, these declarations were equivalent to' saying that the stock alone would not be received if actually offered. There is ample justification to infer that the production of the certificates and their formal tender was waived. It was, therefore, unnecessary to offer the certificates themselves, as the law,' under such circumstances, does not require a man to perform a nugatory act. (Wesling v. Noonan, 31 Miss. 602; Hazard v. Loring, 10 Cush. 267; 7 Wait, Act. & Def. 593; Ashburn v. Poulter, 35 Conn. 553.)

We cannot uphold the contention of appellant that plaintiff had lost her right to reimbursement by having transferred 25 shares of the stock to her husband before the year had expired. One share of stock was as good as another. She was evidently willing to transfer 2,500 shares, and there is noth - to show that she was not fully able to transfer 2,500 shares, as required by the contract, the instant that defendant would comply with his part of the agreement. (Eames v. Haver, (Cal.) 43 Pac. 1120.) The identical shares originally made over to her were not necessarily the only shares which she could return to defendant. As said, one share was as good as another, and represented the same interest in the property. (Colby v. Stevens, 38 N. H. 191; Thompson v. Lyon (W. Va.) 20 S. E. 812; Park v. Wiley, 67 Ala. 310.)

But if we concede that there was no waiver of formal tender before trial, still our decision may be safely put upon another ground. Upon the tidal there was a formal tender of 2,500 shares, indorsed in blank, it appears, and a demand of the return of $2,500 paid for the stock. This was refused by defendant ‘£ on the ground that it is attached according to my information, and I want everything straightened up before I accept it.” No objection was made to the sufficiency of the tender or to its form, except that the stock was attached, as defendant was informed. The defendant cannot now urge any reason for refusing the stock offered on the trial other than that expressly relied on. He is held to have waived the objections that plaintiff did not have the stock in her own name. (Wood v. Babb, 16 S. C. 427; Lathrop v. O'Brien (Minn.) 58 N W. 987; Whelan v. Reilly, 61 Mo. 565; Lawson on Rights, Remedies and Practice, § 2535; 2 Parsons on Cont., 645; Thayer v. Meeker, 86 Ill. 470; Herberger v. Husman (Cal.) 27 Pac. 428.)

Our conclusion upon the whole case is that the. plaintiff is entitled to the sum found to be due to her by the district court, and that upon payment of such sum defendant is entitled to 2,500 shares of stock tendered and left with the clerk of the court, and agreed to be transferred by plaintiff under the contract. Judgment affirmed.

Affirmed.

De Witt, J., concurs. Pemberton, C. J., not sitting.