154 N.W. 518 | S.D. | 1915
The trial court directed a verdict for plaintiff, and then granted defendant’s motion for a new trial. This appeal is from the order granting the new trial. Plaintiff sued to recover the sum of $3,500, and interest, which he claimed to be due him upon the sale of certain- corporate stock under a written contract entered into by him, as party of the first part, with defendant, as party of the second part. -That portion of the contract material to our present discussion is in words and figures as follows:
“Tu-thill, party of the first part, hereby agrees to sell and * * * Sherman, party of the second part, hereby agrees to buy, * * * twenty * * * shares of the capital stock of the Queen City Fire Insurance Company, * * * the purchase price to be thirty-five hundred dollars, * * * with six per -cent. * * * interest from December 20, 1906, time of. purchase to be before December 20, 1911, optional with the said Sherman, * * * said Sherman to have any dividends that may 'be paid on said stock prior to date of purchase.”
The printed record contains a full statement of the settled record, including the specifications of errors presented to the trial court upon respondent’s motion for new trial. Some of the specifications raised the question of the 'sufficiency of the complaint to support the ruling's of the trial court upon evidence offered in support of the cause of action sought to- be established upon the trial. The order appealed from must be sustained for other reasons, and, under the undisputed facts revealed upon this trial and the views of this court as hereinafter expressed, it will become necessary for tire appellant, before another trial of this cause, to seek an amendment of his -complaint. We therefore
Respondent contends that a new trial was properly granted because the trial court erred in taking from the jury the question of whether the contract sued upon had been .procured through appellant’s fraud. Inasmuch as the evidence submitted upon another trial may not be identical with that received upon, this-trial, any expression of our views upon this ruling of the court •could subserve no useful .purpose.
An examination of the contract reveal's that it contained an absolute promise by the one party to sell, and by the other to buy, the stock, but left it optional with the respondent to delay the consummation of such, transfer until December 20, 1911. October 26, 1911, appellant wrote respondent calling attention to the fact that the time for -closing this deal was approaching. In answer respondent wrote that he had not forgotten his obligation, and that he expected to pay appellant 'before the time expired. November 28, 19x1, appellant wrote respondent:
“That insurance company stock is in my box downtown. I meant to have-brought it over and sent to .you to-day, but forgot it. Shall I send it to you at St. Doui's or at Como? You may want to use it before December 20th.”
Appellant testified that after the time of writing this letter, and upon tile same or the next day, he signed the printed form of assignment on the back of the certificate of stock; that the name of the assignee was left blank in such assignment; that the blank assignment was executed with the intent to send same to respondent, but that he changed his mind and thought -he would await a reply as to where to send it to.; that he did not hear from respondent, and therefore did not forward the certificate, but retained the same and had it at the time of the -trial. No tender of the certificate was made in the complaint or upon the trial.
The court directed a verdict for the full contract price, and this without any proof that the stock had become absolutely worthless. Respondent contends that the court erred in directing the verdict for this amount; that, as there was no evidence upon which to base any other finding as to damages, it erred in not directing a verdict for respondent; and that, owing to these errors, it properly granted a new trial. Sections 2302 and 2303, Civ. Code, provide:
“Sec. 2302. The detriment caused by the breach of a buyer’s agreement to accept and pay for personal .property, the title to which is vested in him, is deemed to be the contract price.
“Sec. 2303. The detriment cause by the breach of a buyer’s agreement to accept and pay for personal property, the title to which is not vested in him, is deemed to' be:’
“1. If the property has been resold, pursuant to section 2151, the excess, if any, of the amount due from the buyer, under the contract, over the net proceeds of the resale; or,
“2. If the property has not been resold in the manner prescribed by section 2151, the excess, if any, of the amount due from the buyer, under the contract, over' the value to the seller, together with .the excess, if any, of the expenses properly incurred in carrying the property to market, over those which would have been incurred for the carriage thereof, if the buyer had accepted it.”
If appellant was entitled to. recover in this action, it is conceded that the amount of such recovery depended upon whether or not the title to the stock ever became vested in defendant. If such title did not become vested in defendant, the measure of
While the complaint herein was evidently drawn upon the sole theory that the title to- the stock vested in the respondent upon the execution of the written contract, appellant now contends: (i) That the written contract -operated to transfer title to- the stock to respondent upon delivery of the contract. (2) That, when the time for payment elapsed, December 20, 1911, the law at once executed the sale by lapse of the agreed time and passed the title instantly by virtue of the original contract. (3) That, u-nder the terms of the contract, appellant was not 'bound to- deliver, but respondent was bound to come to the vendor and get, the property; that the vendor, by placing -his indorsement on the back of the certificate, did all that was required of him; that nothing further remained to be done, and that a tender of delivery on the .part of the vendor was not necessary in order to pass title. (4) That, if an -offer of performance was necessary, the offer in the letter of November 28th was sufficient, inasmuch as appellant was -entitled to the purchase price before parting with possession. (5) That respondent waived a tender: (a) By requesting time to pay and by promising to pay after December 20, 1911, such request and promise being an acceptance of the property and authorizing appellant to retain possession for respondent until respondent should send the money; and (b) by denying liability in his answer and alleging the contract to be invalid, it thus appearing that any tender would have been useless. (6) That the measure of damages is not controlled by section 2303, because -respondent did not refuse to accept and pay for the stock, but, after the date for payment, expressly accepted the property and repeatedly promised to pay the stipulated price; that, these subsequent promises being set forth in the com-plaint, the suit is upon them as well as upon the original contract.
The order appealed from is affirmed.