17 Utah 239 | Utah | 1898
It appears from this record that J. C. Conklin and five others were on October 26, 1896, the several owners of
“WALKER BROS.,
“Gentlemen:
Inclosed are 179,300 shares of stock in the Omaha Gold-Mining Company. If, on or before November 28, 1896, W. S. Fugate pays you, or causes to be paid for the credit of the parties mentioned below, the sum of 3 and 65-100 cents per share for all the stock herein inclosed, please deliver said stock to him or his order, and credit each party to this escrow the amount set opposite his name. If he fails to make the above-mentioned payment on or before the time mentioned, return the stock to us, as per list below.”
The list consisted of the names of the respective owners, the number of shares owned by each, with the aggregate to be paid them respectively. No consideration appears for the agreement of the owners to keep their offer open until 'November 28, 1896, but all parties insist upon it, and we must recognise it as binding. It further appears that on November 5, 1896, Fugate and defendant Walker agreed that the latter should have a reasonable time in which to do development work on the mining claim at his own cost, to determine the quality of its ore, and to decide upon the purchase by him of the former’s option. The
The appellants rely upon the salute of frauds, and insist that the option given to defendant Walker was a right to accept an offer to sell him certain mining stock, or, in other words, a right to it by complying with the terms of his option. Walker’s option gave him the right, on the terms of his option, to take Fugate’s right to elect on the terms of his option. Fugate intended to transfer his option to Walker for the consideration mentioned in their oral contract or option. The statute embraces, as we shall see, “things in action.” The right which the appellants had to elect was a thing in election, and by the election their right would become a right in action, — “a thing in action,” according to the phraseology of the statute, — but not a right to a thing in possession. At the- time tbe. option to Walker was given, Fugate made the following memorandum:
“Salt Lake City, Utah, Nov. 5, 1896.
“You to take up stock now in escrow in Walker Bros.’ Bank, 177,000 shares, at .03 and 65-100 cents per share; take care of 24,700 shares of stock for me, and pay $150.00.
“W. S. Fugate.
“To J. R. Walker, Jr.”
This memorandum is signed by Fugate, and it contains the name of the party to whom it was given. The escrow
Leaving the memorandum out of view, the question arises, does the evidence in the record establish a binding-contract betweeh Fugate and Walker? Before the latter was willing to accept or refuse Fugate’s offer, he wished to know more about the mining claim; and, for his own information, he commenced development work on Novem her 6, 1896, and prosecuted his investigations until the 13th day of the same month, when he became satisfied, and late in the evening of that day he notified Fugate that he had elected to accept his offer,. and stated to him that he would op the morning of the nest day, as soon as the bank opened, make payment to the bank as the terms of his option required, and requested Fugate to be present. While Fugate and Walker disagree as to the conversation at the time notice of the election was given, it sufficiently appears that the former wished the latter to postpone complying with his option a few days, for fear he would
Appellant Bamberger also makes a claim to one-half of the stock in dispute, and insists that his right to it is superior to that of-J. R. Walker, Jr. It appears that on the morning after the verbal option was made to him, on November 5, 1896, Walker told Farnsworth, an officer of Walker Bros/ bank, who had charge of the stock and the agreement under which it was deposited, that he had taken the option from Fugate; and at 1 o’clock in the afternoon he deposited the same with Farnsworth, and asked him to note the time on the envelope. It further appears that about an hour afterwards Fugate handed Farnsworth a sealed envelope, on which was written:
“ Walker Bros., City.
“Gentlemen:
“This envelope contains a letter in relation to an escrow for 179,300 shares of the Omaha stock in your hands, darted October 26, 1896; and, before delivering the .same to any person, please open this, and consider it in connection with the escrow above named.
“ Yours truly,
“W. S. Fugate.”
It appears the envelope was not opened until Walker had done the development work, and had accepted Fu-gate’s offer, and paid to the bank the amounts due the respective owner of the stock, and until he had complied with the terms of his option, and the. stock had been delivered to him. When the envelope was opened, it was found to contain the following notice:
‘ ‘Gentlemen:
“In reference to the escrow made to me on October 26, 1896, for the purchase of Omaha stock, please take notice that I ha,ve sold and conveyed a one-half interest in said escrow to Simon Bamberger.
“W. S. Fugate.”
We must assume, from the evidence in the record, that Mr. Bamberger knew of the terms of the option to Fugate, and of his option to Walker, and that the latter was doing development work on the mining claim. If he wished to notify Walker Bros, and J. R. Walker, Jr., of his interest in the stock, Bamberger should have done so plainly. He should not have sealed up Fugate’s notice, and have simply directed the seal to be broken before delivery of the stock; for it appears it was done by Bamberger, or by his direction. We must hold that the work upon the mining claim by Walker, as the terms of his option required, and his payments when he gave notice to Fugate of his acceptance, or within less than a day thereafter, made a valid contract, notwithstanding the statute of frauds, and that it attached to the stock before the notice of defendant Bamberger’s claim was made known to Walker Bros, or to him. After the delivery of the stock to Walker, Fugate and Bamberger, on the 17th.day of the same month, tendered Walker Bros, the amount J. R. Walker, Jr., had paid on it, and demanded a delivery of it to them. This tender and demand Walker Bros, refused, but in order to be relieved from litigating the adverse rights of Fugate and Bamberger and J. R. Walker, Jr., they requested a return of the stock to them; and, to accomplish that end, Walker consented, without intending further to relinquish any of his rights to the stock. In this we hold that defendant Walker lost none of the rights which he ob
It is also urged that tbe court below erred in granting tbe decree requiring tbe defendants to interplead and litigate their conflicting claims between themselves. It appears from tbe allegations of tbe complaint and tbe evidence that Walker Bros, bad no interest in tbe stock, further than to deliver it to tbe person or persons found to-be entitled to it; and the defendants having made conflicting claims to it, and no collusion appearing, it was a proper case for such a decree.
The defendánts Bamberger and Fugate also assign as. error tbe order of tbe court granting tbe defendant J. R. Walker leave to file bis amended cross complaint after tbe evidence bad been beard. Tbe amendment was permitted,, to make tbe complaint conform to tbe proofs. Tbe undertaking of Walker to do tbe development work on tbe mining claim without delay, and tbe return .of tbe stock by J. R. Walker, Jr., to Walker Bros., after tbe delivery to-him on November 14th, are shown by tbe proof, and that be did not intend thereby to surrender any of bis rights, by virtue of tbe execution of the requirements of bis option were first alleged in tbe amended complaint. Courts, of equity grant such amendments to enable causes to be-decided upon tbe proofs, when all tbe parties have been permitted to introduce their evidence on the new issues, presented by tbe amendments, and when tbe court can see-that no injustice could result. In view of the fact that both sides rely upon tbe validity of tbe option given by tbe owners of tbe stock in dispute to Fugate, and its binding effect not being disputed, we are disposed to bold that be was authorized to make a valid transfer of it, in equity,, to defendant Walker.
Other errors are assigned by cross complainants Fugate
The decree of the court below is affirmed, with the following changes: J. R. Walker, Jr., shall hold for and deliver to defendant Simon Bamberger the 24,700 shares of stock decreed to Fugate in the decree appealed from. This change is made in the decree in view of the sale by Fugate of one-half of the stock in dispute to Bamberger before the institution of this suit, as it appears from the record. The case is remanded, with directions to the court below to make a change in its decree as above stated. Judgment for costs of appeal to plaintiff and J. R. Walker, Jr., against Fugate and Bamberger.