Clark v. Campbell

• Decision Date: 19 June 1901
• Court: Utah Supreme Court
• Parties: W. A. CLARK, Appellant, v. A. G. CAMPBELL, Respondent

65 P. 496

23 Utah 569

W. A. CLARK, Appellant, v. A. G. CAMPBELL, Respondent

Supreme Court of Utah

June 19, 1901

Appeal from District Court, Salt Lake County.--Hon. A. N. Cherry Judge.

Action by W. A. Clark against A. G. Campbell to receive a dividend on certain mining stock. From a judgment in favor of defendant and an order denying a new trial, plaintiff appeals.

Action to recover $ 19,000, the amount of a dividend upon certain mining stock. Under the instructions of the court so to do the jury returned a verdict for the defendant, and, after motion for new trial, duly made and overruled, plaintiff appeals. The facts are that, in pursuance of negotiations between the defendant and one L. C. Trent, agent of plaintiff, on October 29, 1898, defendant signed the following instrument in writing, and deposited the same together with the mining stock herein mentioned, with Wells Fargo & Co., bankers, Salt lake City, to-wit: "Escrow. To Wells, Fargo & Co., bankers, Salt Lake City: I inclose 95,112 shares of the capital stock of the Ophir Hill Mining Company, of Utah, represented by certificates numbered 138, 102, 69, 115, and 113. I also inclose 1,000 shares of the capital stock of the Ophir Hill Mining and Concentrating Company, represented by certificates numbered 1, 4, 15, 16, 3, and 2. All said certificates are indorsed in blank, except the certificates in favor of W. B. Stanley, whose indorsement I will secure. If L. C. Trent, or his agent, shall pay to my credit at your bank the sum of $ 75,000 on or before November 24, 1898, then and thereupon you shall deliver to him all the inclosed certificates of stock. If, however, said Trent, or his agent, shall fail to pay to my credit at your bank said sum of $ 75,000 on or before November 24, 1898, then, and upon such failure, you shall return to me all the inclosed shares and certificates. The time limited for the payment of said $ 75,000, as aforesaid, is expressly made material to, and of the essence of, the option given by me to said Trent to purchase said shares for said sum, and his option terminates and ceases absolutely at the end of the time limited above for the payment of said $ 75,000. In case of payment the buyer is to pay for revenue stamps, and you are authorized to cancel them for me. Dated October 29, 1898. A. G. Campbell." This writing, together with the certificates of stock, remained as deposited until November 24, 1898, when the plaintiff, by his agent, paid to Wells, Fargo & Co. the sum of $ 75,000. Before the payment was thus made and the stock received, the directors of the Ophir Hill Mining and Concentrating Company declared a dividend, on November 22, 1898, in the total sum of $ 19,000, and on that day was paid to the defendant. This amount was on deposit with T. R. Jones & Co., bankers, to the credit of said mining company, on October 29, 1898, and remained on deposit until after the dividend was declared. Plaintiff did not know, on November 24, 1898, that the dividend had been declared, and, while he knew on October 29 that there was some money of the mining company's on deposit with T. R. Jones & Co., did not know the amount thereof.

AFFIRMED.

Messrs. R. B. Shepard, Allen T. Sanford, Harrison O. Shepard, and Roote & Clark for appellant.

Messrs. Bennett, Harkness, Howat, Sutherland & Van Cott for respondent.

HART, District Judge. Baskin and Bartch, JJ., concur.

OPINION

HART, District Judge

(after stating the facts).--The main question is, who is entitled to the dividends declared and paid, in view of the facts of this case? It is insisted on behalf of plaintiff, Clark, that the so-called "escrow" was a binding agreement upon the defendant, Campbell, before the acceptance of the same by Clark; and that, when the latter did accept the terms of the offer, and made payment on November 24, and the stock was delivered to him, the transaction related back to the delivery of the so-called "escrow" to the depositary on October 29, and the title should be held to pass as of that date, and thus entitle Clark to the dividends declared subsequently to that date. As there was no withdrawal, or attempted withdrawal, by Campbell, of the offer made in the so-called "escrow" before the same was accepted by Clark, it is not very material to inquire how far the "escrow" was binding upon Campbell prior to the acceptance of the terms by Cark and the payment of the amount required. It may be noted, however, for whatever bearing the same may have in view of subsequent developments, that the instrument deposited was not signed by, nor on behalf of, Clark, and he was not bound to do anything. No money consideration appears to have been given for the writing, nor does there appear to have been any independent contract between the parties as to said "escrow" either binding Campbell to keep the offer to sell open for the time named, or binding Clark to buy the said stock at any time, or at all. Doubtless, bills or notes or stocks, as well as real estate, may be the subject of an escrow agreement. As to the necessity for an actual contract 1 Devl. Deeds, section 313, says: "Not only are sufficient parties, a proper subject-matter, and a consideration required, but also an actual contract by the parties. In other words, the grantor must have sold and the grantee must have purchased the land; for a proposal to sell or a proposal to buy, although it may be stated in writing, is not sufficient. An actual contract of sale on one side and purchase on the other is just as requisite as the execution of the instrument by the grantor to make it an escrow." Campbell v. Thomas, 42 Wis. 437, 24 Am. Rep. 427; Fitch v. Bunch, 30 Cal. 208; Hoig v. Adrian College, 83 Ill. 267; Stanton v. Miller, 58 N.Y. 192. In the Wisconsin case above cited the court say: "But we have not discovered a single case in which it has been held that one who has deposited a deed of land with a third person with directions to deliver it to the grantee on the happening of a given event, but who has made no valid executory contract to convey the land, may not revoke the directions to the depositary, and recall the deed, at any time before the conditions of the deposit have been complied with, provided these conditions are such that the title does not pass at once to the grantee upon delivery of the deed to the depositary." If title to the mining...