Ferguson v. Akers

• Decision Date: 08 June 1915
• Citation: 165 Ky. 289,176 S.W. 1149
• Parties: FERGUSON v. AKERS.
• Court: Kentucky Court of Appeals

176 S.W. 1149

165 Ky. 289

FERGUSON v. AKERS.

Court of Appeals of Kentucky.

June 8, 1915

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Suit by E. H. Ferguson against M. L. Akers to recover possession of shares of stock. Judgment for defendant, and plaintiff appeals. Affirmed.

W. G Dearing, of Whitesburg, for appellant.

Wm. W Crawford, of Louisville, for appellee.

CARROLL J.

On June 4, 1909, the appellant, Ferguson, submitted to the appellee Akers, the following proposition in writing:

"I hereby propose to sell to you 346 1/2 shares of the common stock of the Louisville Soap Company for the sum of $27,500; provided you make payment at the present time of $500, which payment, in the event that this proposition should be accepted, is to be applied as part of the purchase price; but, in the event that this proposition is not accepted, the said sum of $500 is to be the consideration for the making of this proposition and leaving open of the same until Monday, June 7, 1909, at six o'clock p. m.

As a further consideration to you for making the purchase of the stock aforesaid, I hereby agreed to release and do hereby release all the reversionary rights which I have in and to the said common stock of the Louisville Soap Company, now held in trust by the Fidelity Trust Company, subject to the terms of a certain agreement between myself and others and you, dated August 12, 1908, so that you, on the consummation of the purchase herein provided for, will become the absolute owner of all of the said stock in the hands of the Fidelity Trust Company which could or would revert to me if the conditions of said contract were not complied with; it being distinctly understood, however, that nothing herein contained shall affect the rights of the holders of the preferred stock of the Louisville Soap Company, and that the provisions concerning the nonpayment of dividends on the common stock of said company, as recited in said contract, are not to be affected by this contract, and no dividends shall be paid on said common stock, except as provided in said contract."

This proposition was accepted by Akers, and the 346 1/2 shares of stock mentioned in the first paragraph, as well as the stock mentioned in the second paragraph, which consisted of 448 1/2 shares, was delivered to Ferguson by the Fidelity Trust Company, in whose possession all of this stock was.

In August, 1913, Ferguson brought this suit in equity against Akers to recover the possession of the 448 1/2 shares of stock, upon the ground that so much of the proposition heretofore set out as released to Akers all the interest Ferguson had in the 448 1/2 shares was a mistake; that he did not propose to sell his interest in this stock, and did not know that the proposition contained any agreement that it should be transferred to Akers. He further set up that he signed the agreement without reading the second paragraph thereof, and that Akers well knew that it was not contemplated or agreed to that he should become the owner of any part of this stock in the event he accepted the proposition to purchase the 346 1/2 shares.

The answer was a denial of the averments of the petition, and, after the case had been prepared for trial, the chancellor dismissed the petition of Ferguson, and he appeals.

The original proposition submitted by Ferguson to Akers is in the record, and it shows that the entire proposition was written on one side of one sheet of paper,...