Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

That pro

None of the others purchased any of the it, was received as security. A purchase instock, and, except the sum of $800 realized volves an acquisition. The purchaser is enfrom the purchases mentioned, the note was titled to the thing purchased. There are two unpaid. After the default of Willoughby parties to a purchase,-a vendor and a venthe plaintiffs tendered to the defendant a dee,-and, upon the payment by the vendee certificate for 400 shares of the stock, and to the vendor of the purchase price, an oblidemanded compliance with the agreement, gation rests upon the latter to transfer to the which the defendant refused. This action former the subject of the sale. An agreewas brought to recover the sum of $200 as ment to purchase implies, even if it does not damages for breach of the contract. The express, an agreement to deliver the thing grounds of demurrer were: First, that the purchased, so that, if the purchaser can be complaint did not state facts sufficient to held to his purchase, the seller can be held constitute a cause of action; second, that to the delivery of that which was purchased. there was a defect of parties defendant; Accordingly the parties to this agreement, and, third, that there was no consideration upon payment for their stock, were entitled for the agreement.

to have it transferred to them, and the plainBy the terms of the Code, joint agreements tiffs could not enforce payment for it withare several, and suit may be brought against out making it over to them. The plaintiffs any of the parties liable or against all of recognized this necessity, for they aver a tnem; so that in bringing this action against tender of the stock to the defendant when the defendant alone the plaintiffs exercised the money was demanded. The contract was a right given them by the statute, and there unilateral, but the plaintiffs, by seeking its was no defect of parties defendant. We enforcement against the defendant, have shall have occasion to notice this Code pro- made it mutual to the extent of assuming as vision again. The agreement was executed to him the obligation of vendors. The agreefor the purpose of being used as collateral ment is, in form, joint. It is the agreement security for the note. It, together with the of all that each shall purchase stock. Upon certificate of stock, was attached to the note, default by one all would become liable; and, and, with the note, delivered to the plain- but for the Code provision we have mentiontiffs before the money was loaned. The loan ed, any suit upon the agreement must be to Willoughby was the consideration for the brought against all its makers. agreement, and the third ground of demur. vision is as follows: "Sec. 13. Persons jointrer is therefore not well laid.

ly or severally liable upon the same obligaA more serious question is presented by the tion or instrument, including the parties to first ground of demurrer, in that it involves bills of exchange and promissory notes, and the sufficiency of the complaint. The action sureties on the same or separate instruments, against the defendant is upon the agreement may all or any of them be included in the set out, and we must consider whether such same action, at the option of the plaintiff." an agreement is capable of enforcement. Sess. Laws 1887, p. 99. This section does The certificate of stock which was deposited not purport in any wise to alter the obligawith the plaintiffs as security for the debt tions which parties have assumed in their was a pledge. In the absence of special contracts. It does not make a contract valid agreement, or of any waiver of the pledgor's which would otherwise be invalid. It operrights, a pledge, if it consists of property ates merely as an enlargement of the remedy bought and sold in the market, is enforced upon the contract, permitting suit to be by sale at public auction, of the time and brought against any of the parties liable or place of which reasonable notice must be against all, at the plaintiff's pleasure. But given to the pledgor. In this case, however, where parties contract jointly there must be Willoughby, by procuring purchasers in ad. a joint liability in order that there may be a vance, at a fixed price, waived his right to several liability. If a joint agreement is inthat method of enforcement, and consented, valid or incapable of enforcement against in case of his own default, to a sale of the all of its makers, it is invalid and incapable of stock in accordance with the terms of the enforcement against any one or more of them. agreement. By the averments of the com- In this case 16 men agreed to purchase 400 plaint, the parties signing the instrument shares each, making a total of 6,400 shares, to were not in any sense sureties. They did come out of one certificate-No. 44-for 5,000 not agree to pay the debt. They simply shares. As shown by the complaint, this agreed to become purchasers, each of a cer- is the exact contract which the parties made, tain portion of the thing pledged, in case an and it is not in our power to vary it. If enforcement of the pledge should become they had been jointly sued, the plaintiffs necessary. They did not agree that the must have been ready to deliver to them amount due should be divided into 16 equal 6,400 shares; but there were only 5,000 shares parts, and that each should purchase a suffi- from which they could be taken. Such a cient amount of the stock at the price named contract is inherently absurd. The parties to pay one part. Their contract was that could not purchase, and the plaintiffs could they would purchase 400 shares, no more and not deliver, 6,400 shares from 5,000 shares. no less, of the stock pledged, at 50 cents per Mr. Bishop says: “A mutual undertaking share. This contract, and not the parties to between parties to do what both know to be impossible is vain and idle, lacking the ele- ahoe Investment Company. From a judg. ments of a contract, and no suit can be main- ment for plaintiff, defendant appeals. Aftained upon it.” Bish. Cont. § 579. See, also firmed. Chit. Cont. (11th Am. Ed.) 64, note; Faulkner

Chas. M. Bice, for appellant. W. S. Deck v. Lowe, 2 Exch. 595; Gilmer v. Gilmer, 42

er and Wm. Knapp, for appellee. Ala. 23. If the agreement had by its terms been several, a recovery could have been had against each of the parties as long as the THOMSON, J. The plaintiff, Platt, brought stock remained unexhausted, because his this action to recover the reasonable value agreement was complete in itself, and inde- of his time and services in behalf of the de pendent of that of the others; but, the con- fendant, the Arapahoe Investment Company, tract being joint, and, as a joint contract, from September 1, 1890, to October 1, 1891, being upon its face impossible of perform- less the sum of $900, paid to him by the deance, it is void, and no action is maintain- fendant. There was evidence tending to esable upon it against all or any of the parties tablish the following facts: In May, 1890, the to it. It is the case made by the complaint plaintiff, who then lived in the East, being that is here passed upon.

Whether in some in Denver for the purpose of investing some other form of action, or under averments money in city real estate, met a Mr. Sage, who which are wanting in this complaint, the advised him to put his money into a company plaintiffs may not have a remedy against the which he (Mr. Sage) was then endeavoring signers of the instrument, it is not in order to organize. Sage proposed to him that if he now to express an opinion. The judgment is would invest his money in stock of the proaffirmed. Affirmed.

posed company, and come to Denver, and devote his time and services to the company,

he should be made a director and appointed (5 Colo. App. 516)

its counsel; and, as soon as the company ARAPAHOE INV. CO. V. PLATT.1

was on its feet and able to pay salaries, a sal(Court of Appeals of Colorado. Feb. 11, 1895.)

ary should be paid to him for his services.

These services were to be rendered in the CORPORATIONS-LIABILITY FOR CONTRACT OF PROMOTER -ADOPTION OF CONTRACT-EVIDENCE

legal business of the company, in selling real ATTORNEY-RIGT TO COMPENSATION. estate for it, and in doing such other busi

1. A contract made by one engaged in the ness as it might require. The proposition formation of a corporation, and who afterwards

was accepted by the plaintiff, who then went became a director thereof, by which one was induced to subscribe for stock, is not binding on

back to his home, settled up his affairs there, the corporation, unless adopted by it.

and returned, reaching Denyer about the 2. In an action against a corporation for middle of August, 1890. The defendant comservices as attorney, it appeared that, before de

pany, which was the identical company profendant's incorporation, S., who organized it, told plaintill that if he would subscribe to the

posed by Mr. Sage, had been incorporated in stock, and devote his time and services to the the preceding June, the plaintiff having been company, he would be elected a director thereof, made a director; and on the 1st of Septemand appointed its counsel on a salary. The

ber, 1890, he put $2,500 into the company, company was formed, and both S. and plaintiff were elected directors. Plaintiff paid his sub

and entered into its service. The amount of seription to its stock, and entered its office, and salary which he should receive was not placed his whole time at the disposal of the company, doing what legal business was required of

agreed upon between himself and Mr. Sage. him. Some of the other directors knew of the

On the 1st of the following October, the di. agreement which S. made with plaintiff, and all rectors of the company elected him its counof them saw plaintiff occupying defendant's of- sel for the ensuing year. He endeavored fice and accepted his services. A year after he entered the oilice the agreement made by S. was

from time to time to have the amount of his laid before a meeting of the directors, and the salary fixed by the board, but did not sucstatement by one of the directors that they ceed. He devoted his time to the company, would vote plaintiff a salary met with no dissent. Plaintiff continued in the service of the

performing such services as were required company for some time longer without any ob

of him, although it had very little business jection, and received two payments for services. for him to do. The condition of the comTelul, that a finding that defendant adopted the

pany was not flourishing until August, 1891, agreement made by S. with plaintiff was justified.

when a wave of prosperity struck it, and it 3. In such case, the value of plaintiff's serv

found considerable money in its treasury. ices should not be predicated on the actual sery- The directors then determined that the comices rendered by him, but by the time during which his services were at defendant's disposal.

pany was in a condition to pay salaries. A 4. An agreement by a corporation to pay

committee was accordingly appointed by the its counsel a salary, as soon as the company is board to adjust the salaries to be paid, which financially able, entitles the counsel to salary

thereupon fixed the amounts which should from the time he enters its employ, and not from the time the company becomes financially able

be received by the president, the vice presito do so.

dent, and treasurer, and the secretary, to be Appeal from district court, Arapahoe coun

paid from the 1st day of the preceding De

cember. The committee reported that it was ty. Action by Franklin Platt against the Arap

unable to agree upon the amount which

should be paid to the plaintiff. After mak1 Rehearing denied March 11, 1895.

ing an unsuccessful effort to have his own salary provided for, he threatened the board ber he was elected counsel of the defendant that he would sue the company if some ac- company for a year. In September, after tion was not taken in his behalf, and was an- his return, he entered into its office, and there swered by one of the directors that he should remained, ready to do whatever might be rehave a salary, that they would vote him one. quired of him. The defendant availed itself There was no disapproval of the remark by of his services in so far as it had business the board or any of its members. Mr. Sage, to do. Some of the directors knew exactly with whom the plaintiff had contracted, was the agreement under which he was serving a member of the board. Mr. Woodman, an- the company, and the others must necessarily other director, had personal knowledge of the have known that he was there, occupying the contract. At the meeting in August, upon the company's office, in pursuance of some arrequest oi Mr. Bullock, who was also a direc- rangement, the nature of which was easy of tor, and who remarked that he was not fully ascertainment. They were accepting his servinformed in the matter, the plaintiff made a ices, and, if they deemed it important to statement of the facts to the board. The know the details of his employment, they board adjourned without taking any action should have inquired. Afterwards, in Auupon the question. The plaintiff had, pre- gust, 1891, while they were assembled as a vious to this time, occupied the company's board, the facts were laid before them fully, office, and, after the meeting, continued in and they then knew all that the plaintiff himits office, until the 1st of the following Octo- self knew. No suggestion looking to a disber, when he left. In August, about the affirmance of the contract between him and time of this meeting, the company paid the Sage was made. On the contrary, after he plaintiff $400, and a month afterwards $500 had given them the particulars of his conmore. These two sums were all that he ever tract, a statement by one of their number received.

that the board would vote him a salary met The contract under which the plaintiff with no dissent from any director. He conclaims was made with Mr. Sage, who at the tinued in the service of the company for time was engaged in promoting the organi- some time afterwards, without objection zation of the defendant company. It was a from any source. He received two sums of contract which, by its terms, was to be per- money, aggregating $900; and, if the pay. formed by the company after it should be in- ments were not made in pursuance of the corporated. Mr. Sage was not, and could contract, they are totally unexplained. Here not be, its agent, because it had not yet come is a succession of facts which are explicable into existence. It was in virtue of his ef- only upon the hypothesis that it was the inforts, and through his instrumentality, that tention of the company to carry out the conit was afterwards organized; but prior to its tract made by Mr. Sage. The adoption of organization, and at the time of the making the contract is a legitimate, if not a necesof the contract, he was merely a promoter. sary, inference from them, and they are amThe company which he assisted in creating ply sufficient to sustain the verdict of the was not bound by any of his precedent acts, jury in the case. It does not matter that except, as by adopting them, it made them the company had not sufficient business to its own. No liability attached to it on ac- keep the plaintiff employed. That was not count of the contract between the plaintiff his fault. The contract exacted of him the and Mr. Sage in virtue of the contract itself, devotion of his entire time to the company. and no such liability could arise unless it He was thus prevented from earning any. was voluntarily assumed by the adoption of thing elsewhere, and it was the value of the the contract on the part of the company. time which he expended, rather than the Water Co. v. Adams (Colo. App.) 37 Pac. 42. value of any particular services rendered, by But it is not necessary that the act of adop- which his right of recovery should be meastion should be formal. Whatever would ured. This suit is for the value of his time amount to a ratification of the unauthorized in connection with his services. He worked acts of an agent would be sufficient evidence under a contract which was complete except of an adoption of the contracts of a promoter. in the matter of fixing the amount of his 1 Beach, Priv. Corp. $$ 197, 198. In Water compensation, so that evidence of value was Co. V. Adams, supra, we held that certain necessary to ascertain what that should be. acts of the officers of the company in refer- Proof of the contract with Sage, and of the ence to a contract made by its promoter, done proceedings and occurrences subsequent to with knowledge of its existence and terms, the incorporation of the defendant, was necwere sufficient to justify a finding that the essary to the establishment of his claim, and contract had been adopted by the company. was properly allowed. We find upon the

There is very little controversy over the face of the record no error in the admission facts of this case, and, in so far as it may or rejection of evidence. The complaint does he said that they are disputed, they are set not recite the contract, and it is not requisite at rest by the verdict of the jury, which that it should. Under its allegations, proof leaves them as we have stated their In of the contract was necessary to show the June, while the plaintiff was absent in the character of the plaintiff's claim, and as inEast, the defendant was incorporated, and troductory to evidence of the value of his the plaintiff was made a director. In Octo- time and services.

The defendant requested four instructions, ceding year.

His engagement commenced, all of which were refused except the third. and he entered upon his duties, two months The first told the jury that the plaintiff was earlier. The directors failed to vote him a not entitled to recover on account of any salary, and he certainly was not bound by services rendered by him as director of the their action in making the other salaries comdefendant. It is true that, in the absence of mence on December 1st. If he was entitled express contract or some by-law, services as to any compensation at all,—and he certainly director of a corporation are presumed to be was,-he was entitled to compensation for the rendered gratuitously; but in view of the entire time he was in the defendant's employ. fact that, by the terms of this contract, the To our minds this record is, in a marked deplaintiff was to give his entire time to the gree, free from error throughout, and the company, doing whatever it required of him, judgment must be affirmed. Affirmed. it seems to us that the instruction would have been misleading, or, at least, confusing. However, the first instruction given embraced

(5 Colo. App. 559) substantially what the defendant asked, so LIVEZEY et al. v. PUEBLO HARDWARE that discussion of the rejected instruction

C0.1 would result in nothing useful. The second (Court of Appeals of Colorado. Feb. 11, 1895.) contains the proposition that the plaintiff was

REVIEW UPON APPEAL. entitled to compensation only for services ac

Where the evidence is conflicting, and tually rendered. Under the facts of this case, no error appears in the instructions of the court, the giving of such an instruction would have a verdict of the jury upon questions of fact will been gross error. The fourth directed the

not be disturbed upon appeal. jury not to consider the agreement with Sage, Appeal from district court, Pueblo county. and informed them that the defendant would Action by the Pueblo Hardware Company be liable only upon such contract as it made against John Livezey, Charles Bergenthal, itself with the plaintiff. As the only agree

and G. L. Dobbins & Co. From a judgment ment that ever was made was made with for the plaintiff, defendants appeal. AfSage, and as the only liability of the defend | firmed. ant arises from its adoption of that identical This suit was brought by appellee against contract, the fallacy contained in this pro- the defendants to collect a book account of posed instruction is obvious.

$135.08, and the amount of a promissory The instructions given seem to us to be re- note for $249, executed by the firm of Dobmarkably clear, fair, and accurate. It is ob- bins & Co., payable to the order of John jected to the first that it submitted to the Livezey one day after date, dated May 13, jury the question whether the plaintiff was 1891, assigned by Livezey to the plaintiff, employed by the defendant to attend to its July 29, 1881. The complaint is in the ordilegal business, sell real estate, and do what- nary form. Dobbins and Bergenthal filed ever else was requisite concerning its busi- separate answers: (1) Denying that Liveness, and to give his exclusive time and at- zey, Bergenthal, and Dobbins were or ever tention to such business. It is the real-estate had been partners under the firm name of G. clause to which exception is taken. There L. Dobbins & Co. or any other name; (2) was some evidence that the company at one alleging that the firm of Dobbins & Co. was time proposed that sales of real estate which composed of Dobbins and Bergenthal; (3) the plaintiff might make should be upon com- denying the indebtedness of the book ac, mission, but there never was any agreement count; (4) admitting the making and delirto that effect. He did not assent to the prop- ery of the note; (5) alleging an indebtedness osition. The original contract with Sage was from Livezey to Bergenthal individually of never changed in any particular, and that in- the sum of $300, which had been assigned cluded the selling of real estate. Fault is to Dobbins & Co., which would be set off found with the second instruction given be- against the note. A trial of the issues was cause it directed the jury that, if they should had to a jury, resulting in a verdict and judgfind that the plaintiff was entitled to recover, ment for the plaintiff for the sum of $450.44, his compensation should be allowed from the from which an appeal was prosecuted to this time he commenced his engagement with the court. defendant until the time when he left its em

Hartman & Glenn and J. H. Mechem, for ployment. This seems to us to be right. By

appellants. Chas. E. Gast and E. E. Hub. the terms of the contract, the plaintiff was to

bell, for appellee. have a salary, but it was not to be paid to him until the company was financially able

REED, J. (after stating the facts). Alto pay. Without any qualifying or restrict

though it appears that Livezey, a defendant ive words, this would mean that, when it

below, is appellant here, we are at a loss to reached a state of financial ability, he would

understand how he becomes one. It does be entitled to receive what he had already

not appear that he was served with process earned, as well as what might accrue in fu

or entered his appearance. He made no an. ture. The company had become able to pay,

swer, and no judgment by default was enand voted certain of its officers salaries, commercing with the 1st of December of the pre- 1 Rehearing denied March 11, 1895.

0

tered against him, nor does he appear to and reasonable value on the property, when statehave in any way participated in the proceed

ments in regard to value are made warranties, ings or appeal. It appears that the motion

renders the policy void. for a new trial was made by G. L. Dobbins Appeal from district court, Arapahoe counand Charles Bergenthal, and overruled. ty. Judgment entered against the firm of G. L.

Action by John Wich against the Sun Fire Dobbins & Co., and the appeal bond execut- Office on a fire insurance policy From a ed by G. L. Dobbins & Co. One of the prin- judgment for plaintiff, defendant appeals. cipal issues of fact to be determined, and per

Reversed. haps the controlling one, in the disposition In December, 1888, appellee, Voght, Ells, of the case, was whether or not Livezey was and Hess purchased a brewery at Florence á member of the firm of Dobbins & Co. It from one McCandless, together with appliwas asserted in the complaint and denied in ances, for the sum of $12,150, $4,000 of the answer. The evidence in regard to it which was paid in cash. The remaining $8,was contradictory. The court did not in- 150 was secured by the joint notes of the struct the jury to find upon the issue, and four purchasers, and a mortgage upon the there was no finding except as it might be in- property. The conveyance from McCandless ferred from the general verdict, and such in- was made to the four purchasers. The four ference would be that they found that he then formed a partnership to prosecute the was not a partner. Eliminating from the business of brewing, and carried on such discussion the question of his partnership,

business under the name of the “Arkansas upon which there was no finding, no ques

Valley Brewing Coinpany." About February tion of law was involved, but questions of 1, 1889, one Carleton, an insurance solicitor facts only. The evidence on every question

for Perkins, Hart & Co., of Denver, applied involved was conflicting and contrauictory.

to appellee to insure the property; was sent Under such circumstances, the finding of the

by him to examine it. After making such exjury will not be disturbed, unless for misdi.

amination, he reported that he would insure rection by the court. In this case the in

it to the amount of $15,000, to which apstructions of the court, on all questions sub

pellee agreed. A blank application was fillmitted, appear to be ample and correct. The

ed up by Carleton, and executed by appellee: judgment of the court will be atlirmed. Af- "The Arkansas Valley Brewing Co., by John firmed.

Wich; Owner." The firm of Perkins. Hart & Co., finding they could not write the en

tire $15,000 in companies represented by (6 Colo. App. 103)

them, so informed appellee, and secured $1,SUN FIRE OFFICE y. WICH.

530 of the amount in the office of appellant, (Court of Appeals of Colorado. Nov. 12, 1894.)

through its agents Packard, Wilson & Piper. ACTION ON INSURANCE POLICY APPLICATION

The former application and data were subWARRANTIES-CHASGE OF OWNERSHIP.

mitted to the last-named company. 1. Error involved in plaintiff's failure to plication being in some respects unsatisfacput in evidence an application for insurance, or tory, a second one was filled up by some to call on defendant to produce it, the policy itself having been put in evidence, is without prej

agent or representative of the insurers, and udice to defendant, where defendant afterwards executed by appellee the same as the former. introduced it as part of its defense.

The four partners continued the business un2. One applying for fire insurance through a

til about the 15th of August, 1889, when Ells, soliciting agent is bound to ascertain the scope of his authority.

Voght, and Hess drew out, conveyed their 3. Where an application for fire insurance, interests by quitclaim deed to appellee, and not attached to the policy, is identified by both the partnership was dissolved; appellée payparties as the one referred to in the policy, the fact that the policy itself, in referring to the

ing nothing for their interests, but assuming application, failed to set out its date, is imma

notes and mortgage made to McCandless. terial.

From that time appellee prosecuted the busi4. Where an applicant who is able to read

ness some 26 days, until the night of Sepsigns, without reading an application filled out by a soliciting agent, and containing plainly

tember 5th, when buildings, appliances, etc., printed provisions that the applicant thereby cov- were destroyed by fire. Appellant refused enants that the facts therein stated with refer- to pay the $1,530 written by it upon the propence to the property are true, and form part of the policy, and amount to warranties, and that

erty, and appellee brought suit. Trial was the application is the act of the applicant, wheth

had to a jury, resulting in a verdict and er filled out by him or by another, he assumes judgment for the plaintiff (appellee) for the the risk of falsity in the facts as written out by

sum of $1,617.22, from which an appeal was the agent. 5. Where the application is made part of

prosecuted. The remaining facts necessary the contract of insurance, all statements of the to an understanding of the case, it is hoped, insured therein relative to the use, care, or char- will appear in the opinion. acter of the property are warranties, and must be strictly complied with, whether material to Chas. J. Hughes, Jr., and Tyson S. Dines, the risk or not.

for appellant. Chas. M. Bice and S. D. On Rehearing.

Walling, for appellee. 1. A transfer of insured property between partners is not a breach of a condition in the policy against a sale or transfer of the property.

REED, J. (after stating the facts). There 2. The failure of an applicant to place a fair are in this case 61 errors assigned, many

The ap

« ΠροηγούμενηΣυνέχεια »