Fisher v. Hopkins

• Citation: 34 P. 899,4 Wyo. 379
• Parties: FISHER v. HOPKINS ET AL. CHADWICK ET AL. v. HOPKINS ET AL
• Decision Date: 01 December 1893
• Court: Wyoming Supreme Court

34 P. 899

4 Wyo. 379

FISHER v. HOPKINS ET AL.

CHADWICK ET AL. v. HOPKINS ET AL

Supreme Court of Wyoming

December 1, 1893

Commenced in District Court October, 1889.

ERROR to District Court for Laramie County. HON. RICHARD H. SCOTT Judge.

This was an action brought by Edwin W. Hopkins against Charles F Fisher and John M. Chadwick and Charles F. Fisher administrators of the estate of Jehu J. Chadwick, deceased upon a contract for repurchase of one hundred and fifty shares of stock of the North Crow Land & Cattle Company. The plaintiff claimed to have become the owner of said shares by purchase from Charles F. Fisher and Jehu J. Chadwick, in October, 1884, under an agreement that in case he became dissatisfied with the purchase, they would at the end of three years, at his option, refund to him the money paid by him therefor, with interest at ten per cent per annum, and take back the shares of stock. The plaintiff relied upon a verbal promise of Fisher to that effect, and statements to the same effect contained in two letters written by him, one of which inclosed the certificates of stock. To connect Chadwick with that agreement plaintiff relied upon the following facts: that until a short time previous to the purchase of the shares by the plaintiff Fisher and Chadwick had been copartners, engaged in the ranch and cattle business, and had incorporated the company aforesaid for the purpose of continuing the same business; that Chadwick furnished an equal amount of the stock purchased by plaintiff and received $ 5,500.00 of the money paid therefor, Fisher receiving $ 6,500.00; that Fisher's greater proportion of the purchase price was claimed by him for conducting the negotiations, according to the admissions of Chadwick; but Fisher testified that he received a larger amount in consideration of some trips he had made in connection with the general business for which he had previously made no charge. Plaintiff also relied upon certain letters which he had received from Chadwick, and certain admissions which the latter had made with reference to the obligation to the plaintiff. On the part of the defense it was claimed that the original contract was the personal obligation of Fisher, and that the liability to repurchase the stock so far as Chadwick was concerned arose under a new contract alleged to have been made in the fall of 1885, which required Fisher and Chadwick to take the shares and to pay the plaintiff therefor only so fast as the obligors were financially able to do so without sacrificing their interest in, or the property of the company. Plaintiff denied the making of any new contract, and testified that in the fall of 1885 he notified both Fisher and Chadwick that he had concluded to withdraw, and would demand his money according to the original understanding, and that Chadwick then said that they would pay him when the money became due and perhaps before that, but that they would be compelled to sell some property in order to do it. Chadwick died September 23, 1888, and John M. Chadwick and Charles F. Fisher were appointed administrators of his estate.

The case was tried to a jury, and a verdict was returned for plaintiff for $ 14,554.90. Separate motions for new trial were made and overruled, and the administrators and Charles F. Fisher prosecuted separate proceedings in error. The cases were heard and determined together. Upon the trial, in addition to the instructions quoted in the opinion the court at the request of the plaintiff charged the jury as follows:

"1. The jury are instructed as a matter of law that if as an inducement to another to purchase stock in an incorporated company one agrees, in consideration of said purchase, to take back the stock and refund the purchase money, with interest thereon, within a certain period of time, at the option of the purchaser, such contract is enforcible, and if the purchaser exercises his option to return the stock and have refunded his money within the period prescribed by the contract, the purchaser may recover upon a tender of the stock the amount of the original purchase money with interest as agreed." "2. If the jury believe from the evidence that the plaintiff purchased the one hundred and fifty shares of stock in the North Crow Land & Cattle Co. from the defendant Charles F. Fisher, and Jehu J. Chadwick, and that the condition of said purchase was that the said plaintiff should have the option of returning said stock and having refunded the amount of money which he paid for the same, with interest at the rate of ten per cent per annum, that the said Fisher and Chadwick would be liable to pay to the plaintiff within the time agreed upon at his option, the amount of money paid by him for said stock, with interest thereon at the rate of ten per cent per annum, and if you find that such agreement and such conditions of the purchase were entered into by the said Charles F. Fisher and that said Chadwick became interested in said sale and purchase, then he became bound to all the terms and conditions of said purchase and contract."

"4. If the jury find from the evidence that the time the stock in the North Crow Land & Cattle Company was purchased by the plaintiff, that he purchased under the agreement and condition that at the end of three or five years, if he was dissatisfied, he could return said stock and be refunded the original purchase price with interest at the rate of ten per cent per annum, and if you further find from the evidence that at the time the defendant Charles F. Fisher and Jehu J. Chadwick were partners and jointly interested in the sale of said stock to the plaintiff, then any agreement made and entered into by the said Charles F. Fisher and the said plaintiff which became one of the conditions of said purchase became and was binding upon the said Jehu J. Chadwick, deceased, and upon the administrators of his estate."

"5. In this case, if you find for the plaintiff, the measure of damages will be the amount of money originally paid by the plaintiff for the stock with interest thereon at the rate of ten per cent per annum, less the payments which are shown to have been made, said payments to be credited as of the time they were made respectively."

To these instructions defendant excepted. On request of defendant the court gave the following instructions:

"1. If you find from the evidence that there was an original agreement with and by Charles F. Fisher alone to repurchase the stock in question, but that subsequently there was a new agreement with and by Charles F. Fisher and Jehu J. Chadwick to make such repurchase, such new agreement would set aside the original one, and the plaintiff cannot recover except upon the new agreement."

"2. If you find from the evidence that a new agreement took the place of the original one for the repurchase of the stock, and that under such new agreement payment was to be made only as proceeds could be realized from the cattle and ranch property of the company upon sales of the same without sacrifice; and if you further believe from the evidence that Charles F. Fisher and Jehu J. Chadwick and the administrators of the latter used due diligence to sell and realize from said cattle and ranch property and were unable to realize therefrom any amount above the reasonable running expenses of such property and such sums as were necessary to protect and care for said property and such sums as have already been paid to the plaintiff, then you will find for the defendants."

Judgment affirmed.

Lacey & Van Devanter, for plaintiffs in error.

The judgment against administrators not being made payable out of the decedent's estate has no support in the pleadings evidence or verdict. The instruction based upon a contract made in 1885 required the jury to find for the plaintiff, not upon the contract alleged in the petition, but upon one which he denied both in his reply and in his testimony. Under such a contract it must have been shown that the obligors were able to pay without sacrifice of the property, or that they would have been able with the exercise of reasonable diligence. The question of reasonable time was not in issue. Mr. Chadwick was not bound by the contract made by Fisher; he was not a party to it, and it was error to charge the jury that if he became interested in the sale he would be liable. They were not partners when the sale to Hopkins was made. At common law the death of one of two joint contractors severs the promise and renders the survivor liable thereon as on his several promise. In such case the survivor only can be sued on the contract, and the legal representative of the deceased party, if sued, may plead the survivorship in bar or give it in evidence on the trial. (Rice, appellant, 89 Mass. (7 Allen), 112-114; Burnside et al. v. Mervick et al., 4 Metc., 537-544; Simonds v. Center, 6 Mass. 18; Foster et al. v. Hooper, 2 Mass. 572; U. S. v. Price, 9 How. (U.S.), 83-90-95; Pickersgill v. Lahens, 15 Wall., 140; Sherman v. Kruel, 42 Wis. 33; Cairnes v. O'Bleness, 40 Wis. 469; Jones v. Est. of Keep, 23 Wis. 45; Voorhis v. Childs Ex., 17 N.Y. 354; Richter v. Poppenhausen, 42 N.Y. 373; Hauck v. Craighead, 67 N.Y. 432; Barnes v. Brown, 130 N.Y. 372; Kennedy v. Carpenter, 2 Whart. Pa., 344; Rowan v. Woodward, 2 A. K. Marsh., 140; Poole v. McLeod, 1 S. & M., 391; Grant v. Shurtel, 1 Wend., 148; Waters v. Riley, 2 Harris & Gill, 305; Lanier v. Irvine, 24 Minn. 116; Trustees v. Lawrence, 11 Paige, 80; Bradley v. Burwell Denio, 65; Atwell v. Milton, 4 Hen. & Munf. (Va.), 253; Watkins v. Tate, 3 Call. Va. 521; Gryness v. Pendleton, 4 Call. Va. 130.) The allowance of testimony of Hopkins as to transactions occurring prior to the death of Jehu J. Chadwick seems to violate Sec. 2590, Rev. Stat. The personal...