Cowden v. Karshner

• Decision Date: 19 March 1928
• Docket Number: No. 5327.,5327.
• Citation: 24 F.2d 916
• Parties: COWDEN et ux. v. KARSHNER.
• Court: U.S. Court of Appeals — Ninth Circuit

24 F.2d 916 (1928)

COWDEN et ux. v. KARSHNER.

No. 5327.

Circuit Court of Appeals, Ninth Circuit.

March 19, 1928.

C. A. Riddle and James Kiefer, both of Seattle, Wash., for plaintiffs in error.

W. J. Murphy, of Aberdeen, Wash., for defendant in error.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

RUDKIN, Circuit Judge.

This is a writ of error to review a judgment based on special findings of fact in an action tried by the court below without a jury. The special findings are in substance that, at all times mentioned therein, the two defendants were husband and wife; that on April 13, 1922, the defendant H. D. Cowden was president and a stockholder of the Dome Gold Corporation, organized and existing under and by virtue of the laws of the state of Washington; that on that date said defendant was engaged in selling stock in the corporation for the purpose of raising money for the benefit of the corporation; that at Aberdeen, Wash., the plaintiff purchased from and through said defendant 15,000 shares of the common stock of the corporation at an agreed price of $5,000, which sum the plaintiff then paid to said defendant; that as an inducement, and as part consideration for the purchase of the stock by the plaintiff, said defendant promised and agreed in writing that, in case the plaintiff was not satisfied with his investment, and would so notify said defendant before November 1, 1923, said defendant would repurchase the stock from the plaintiff on or before December 1, 1923, for the sum of $6,000; that on August 1, 1923, the plaintiff notified said defendant that he was not satisfied with his investment, and demanded that said defendant repurchase the stock for the sum of $6,000 in accordance with their agreement; that at that time said defendant asked for further time, and a second agreement was thereupon entered into, wherein and whereby said defendant agreed to repurchase the stock on or before December 1, 1924, for the sum of $6,000, upon notice in writing, by registered mail, on or before November 1, 1924; that during the month of October, 1924, the plaintiff, being dissatisfied with his purchase, gave notice to said defendant in writing, by registered mail, to the effect that he was not satisfied with the investment, in accordance with the terms of said last-mentioned contract, and tendered the stock to said defendant, and demanded payment of the sum of $6,000; that the plaintiff has at all times complied with the terms and conditions of the agreement, and is ready, willing, and able to perform the contract on his part, and that the defendants have at all times refused to comply with the contract on their part. It is next found that said agreements were made by H. D. Cowden, as agent for and representative of the marital community composed of H. D. Cowden and Alma R. Cowden, his wife; that said sale of stock was for the benefit of said marital community, and that all the acts of said H. D. Cowden, and his failure and refusal to carry out and perform the contract, were acquiesced in and ratified by his wife, Alma R. Cowden. Then follows a finding that the defendants were nonresident of the state of Washington, and residents of the state of New York, and were the owners of certain described real property in Snohomish county, Washington.

For convenience we will refer to the parties here as they are designated in the findings of the court below. Three or four days before the trial the plaintiff served a written notice on counsel for the defendants, requiring them to produce at the trial the notice sent by registered mail, as set forth in the findings, but the notice was not produced as requested, and the court admitted secondary evidence of its...