Baumhoff v. Oklahoma City Elec. & Gas & Power Co.

• Decision Date: 04 March 1904
• Citation: 77 P. 40,14 Okla. 127,1904 OK 15
• Parties: BAUMHOFF v. OKLAHOMA CITY ELECTRIC & GAS & POWER CO. et al. [*]
• Court: Oklahoma Supreme Court

77 P. 40

14 Okla. 127, 1904 OK 15

BAUMHOFF v. OKLAHOMA CITY ELECTRIC & GAS & POWER CO. et al. ^[*]

Supreme Court of Oklahoma

March 4, 1904

Syllabus by the Court.

1. It is not necessary to a sufficiency of a cause of action upon contract to show or set out the fact of the instrument having been stamped as required by Act March 2, 1901, c. 806, § 8 Schedule A, subd. 1, 31 Stat. 942 [U. S. Comp. St. 1901, p 2300].

2. There may be said to be mutuality of contract where the agreement entered into between the parties is binding alike upon each, touching its ultimate performance. Both parties must be bound, or neither are bound.

3. A petition praying for the enforcement of a contract, which by its terms provides for the sale of certain properties named within 10 days after a mayor and council of a city shall have passed an ordinance amending certain franchise rights, which amendments were to be agreed upon by the parties, and which petition alleges the satisfactory passage of such amendments to such ordinance, is not demurrable upon the ground that the petition is indefinite and uncertain and does not state facts which are sufficient to constitute a cause of action.

4. A contract which provides for the sale of certain municipal franchises after such franchises have been amended by the mayor and council of the municipality, and which contract contains no provision requiring the action of either party further than to agree upon the amendment desired before the same was introduced for the consideration of the mayor and council, is not void as against public policy.

Error from District Court, Oklahoma County; before Justice Burwell.

Action by George W. Baumhoff against the Oklahoma City Electric & Gas & Power Company and others. Judgment for defendants, and plaintiff brings error. Reversed.

H. H Howard and Flynn & Ames, for plaintiff in error.

Shartel, Keaton & Wells, C. Porter Johnson, and R. G. Hays, for defendants in error.

GILLETTE J.

This was an action brought in the district court of Oklahoma county against the Oklahoma City Electric & Gas & Power Company et al. by George Baumhoff to recover upon a contract for the sale of 1,500 shares of the capital stock of the defendant company. The amended petition of plaintiff is as follows:

"Territory of Oklahoma, Oklahoma County--ss.: In the District Court of Said Territory, within and for Said County, in the Third Judicial District. George W. Baumhoff, Plaintiff, v. Oklahoma City Electric & Gas & Power Company, E. H. Cooke, G. W. Wheeler, and G. N. Beebe, Defendants. Petition. The said plaintiff, complaining of the said defendants, alleges and says:

"(1) At all the times herein mentioned the said Oklahoma City Electric & Gas & Power Company was a corporation organized and existing under the laws of the said territory.

"(2) That said company had its place of business at Oklahoma City, said county, where it was the owner of certain franchises, contracts, real estate, machinery, poles, wires, and other apparatus, and was operating the same as an electric light power plant; and it was also the owner of certain gas pipe, machinery, and fixtures.

"(3) The capital stock of said corporation was $150,000, divided into 1,500 shares, of the par value of $100 each, all of which stock was at the times herein mentioned owned by the defendants E. H. Cooke, G. W. Wheeler, and G. N. Beebe.

"(4) That on December 10, 1901, the plaintiff and defendants made and entered into a contract, memorandum, and agreement in writing, a true copy of which is hereto attached, marked 'Exhibit A,' and made a part hereof, by the terms of which the defendants agreed to sell, and the plaintiff to buy, all of said capital stock, and to pay therefor the sum of $120,000, and further agreed to pay a sum not exceeding $2,000 for eight-inch gas pipe then on the ground and in transit, and also to pay for an electric generator not to

exceed $2,200; the defendants to pay all the other debts of said company.

"(5) The plaintiff alleges that the capital stock and property covered by said contract, and which the defendants promised and agreed to so sell and deliver to him, were, ever since have been, and are of the reasonable market value of more than $175,000, exclusive of the said sums he so agreed to pay on the debts of said corporation, and that on account of said contract, and in pursuance thereof, and relying upon the performance of the same, he has expended time and money, the extent and value of which exceed $5,000.

"(6) The plaintiff says further that he has at all times been ready, able, and willing to perform said contract on his part, and is now ready, able, and willing to do so; that on December 30, 1901, he requested the defendants to proceed to perform said contract on their part, which they refused to do, and refused to talk concerning such performance, and that he renewed said demand on December 31, 1901, and was then advised by them that they would not perform such contract; and that he has at all times been ready, able, and willing to pay said $4,200 of the debts of said company, and has offered to do so, and demanded a performance on the part of defendants.

"(7) That on or about the 15th day of February, 1902, in pursuance of the terms and in the performance of said contract, the defendants entered into agreements or ordinances with said city amending and extending the franchises of said corporation (such ordinances being numbered 283, 284, and 285); that the same were entirely satisfactory to plaintiff, and, as soon as he learned of their existence, he made known his satisfaction therewith to defendants; that plaintiff is a resident of St. Louis, in the state of Missouri, and, at the time said ordinances were passed, was absent from Oklahoma City: that defendants purposely concealed from him the fact that said ordinances had become effective for the fraudulent purpose of preventing him from demanding a performance of the terms of said contract, and making tender of the sum he was to pay thereunder, within thirty days after the passage thereof; that, promptly upon learning of the existence of said ordinance, he came to Oklahoma City, prepared to perform without delay all the terms of said contract; that he immediately offered to do so, and defendants refused.

"(8) That at the time of making such offer and demand the defendants were unable to perform the terms of said contract, for the reason that they had already sold and delivered said property to other persons, unknown to plaintiff; that the defendants concealed the passage of said ordinances from plaintiff because at the time they had received an offer from said other parties for said property of $140,000, or $20,000 more than plaintiff was to pay, of which fact plaintiff was ignorant, and before, after learning of the existence of said ordinance, he was able to renew his demand for a performance of said contract, the defendants had put it out of their power to perform the terms of said contract, by the sale and delivery of said property to such other persons, and thereby violated the terms of said contract of plaintiff; that plaintiff did not know of the violation of said contract by the sale and transfer of said property to such other persons until after his demand and tender of performance of the terms of the same, and the refusal of defendants to perform such contract, and the defendants fraudulently concealed such sale and delivery from him in order to prevent him from interfering therewith and enforcing his said contract.

"(9) That plaintiff says further that the defendants have often refused, and still refuse, to perform said contract; that he has often offered to perform said contract, and is now ready, able, and willing to do so, and to pay said $120,000, and said $4,200, and any other sum he may be obligated to pay, and to accept said ordinances and the transfer of said stock and property discharged from the debts of said corporation, according to the terms of said contract, and defendants are unwilling and have wholly failed and refused to perform said contract on their part, and have violated said agreement, to his damage in the sum of sixty thousand dollars. Wherefore the plaintiff prays judgment against the defendants for the sum of sixty thousand dollars, with interest thereon at the rate of seven per centum per annum from and after December 30, 1901, and costs of suit.

"Geo. W. Baumhoff, Plaintiff,

"By Howard & Ames, His Attorneys."

Exhibit A: "Oklahoma City, Dec. 10th, 1901. In consideration of the sum of one dollar received from Geo. W. Baumhoff, we hereby agree to sell to said Geo. W. Baumhoff, his successors or assigns, fifteen hundred shares, constituting all of the shares of the capital stock of the Oklahoma City Electric and Gas and Power Company of Oklahoma City, Oklahoma Territory of the par value of One Hundred Dollars each, for the sum of One Hundred and Twenty Thousand Dollars, to be paid in cash. This sale is to be consummated within ten days after an amendment duly passed by ordinance enacted by the City Council of the City of Oklahoma City, O. T., such amendment to said ordinance to be mutually agreed upon between the President and Secretary of said Company and the purchaser before the same is introduced into the Council. The above shares of stock shall convey all the property, rights, privileges, grants and franchises of said Oklahoma City Electric Gas and Power Co., free of debts of all kinds excepting a sum not exceeding $2,000.00 for eight-inch gas pipe now on the grounds and en route as billed from the Dimmick Pipe Co. of Birmingham, Ala., and our Electric Generator from the Western Electric Supply Co. of St. Louis, at not exceeding $2,200--which the purchaser assumes and is to pay...