Galvin v. Mac Mining & Milling Co.
| Decision Date | 02 July 1894 |
| Parties | GALVIN v. MAC MINING & MILLING CO. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; William H Hunt, Judge.
Action by Patrick Galvin against the Mac Mining & Milling Company to recover for shares of stock sold to defendant, and to compel defendant to pay a note executed by plaintiff, which defendant had assumed to pay. From a judgment for plaintiff defendant appeals. Affirmed.
McConnell Clayberg & Gunn, for appellant.
C. B Nolan and T. J.
Walsh, for respondent.
In this action plaintiff alleges sale and delivery by him, and purchase by defendant, of 7,468 shares of the capital stock of the defendant company, of the reasonable value of $2,340.40, but that defendant has failed to make payment therefor; wherefore judgment is demanded for recovery of that sum. And for a second cause of action plaintiff alleges a transaction whereby he claims defendant became indebted to him in the sum of $1,226, with certain interest thereon, by reason of defendant having assumed and agreed to pay plaintiff's promissory note for that amount, which he and another had executed and delivered to Henry Klein. It appears this note provided for attorney fees, to be recovered, in case its payment was enforced by action at law, by the legal holder thereof; and, in addition to the demand for $1,226 and interest, plaintiff demands an attorney's fee of $60 presumably (but not expressly by allegation) predicating such demand upon a condition in said note that, if payment thereof was enforced by an action at law, reasonable attorney fees for prosecuting such action should be recovered also.
As to this second cause of action it is admitted that defendant, before filing its answer, had fulfilled its obligation to pay the principal and interest of said note, but in its answer denies liability for any attorney fee for prosecuting plaintiff's action to compel it to pay said note. The question concerning this attorney fee is therefore the only point, respecting the cause of action, involved in this appeal. As to this attorney fee it is plain that the defendant company was not liable therefor. It was not directly a party to said note, but in the arrangement between plaintiff and defendant the latter agreed to pay the note, and, not having paid the whole thereof when this action was brought, plaintiff assumed that he could, by this action, compel defendant to pay him the amount of said note, together with reasonable attorney fees for prosecuting his action to enforce such payment. Before the action came to trial, however, and before answer, defendant paid the amount of said note to the holder thereof. It is not shown that defendant had agreed to pay attorney fees for prosecuting an action at law to compel it to pay said note, and we are, without hesitation, of opinion that defendant is not liable for such demand. Lang v. Cadwell, 13 Mont. --, 34 P. 957.
As to the first cause of action, for the recovery of the reasonable value of said stock, it appears that plaintiff relied upon the fact that defendant had tortiously assumed, held, and converted said stock to his own use, and therefore plaintiff alleges purchase thereof by defendant, on the theory that he could waive the tort, and sue as upon contract for purchase. Defendant specifically denied every allegation of plaintiff's complaint relating to the sale and purchase of said stock. It was developed on the trial that said stock had been placed in the custody of defendant's secretary, with an assignment indorsed thereon, transferring the same to A. McLain, under the condition that the same, with other stock, might be purchased by the latter on or before a certain date fixed, on payment of a certain sum per share. That, such arrangement having expired, or been entirely revoked, leaving plaintiff's stock in the possession of the secretary of said company, subject to plaintiff's withdrawal or control, the plaintiff went to the secretary of defendant, and obtained his shares of stock, and indorsed thereon an assignment thereof to D. Galvin, and left the same in the hands of said secretary, explaining to him that plaintiff was about to borrow a sum of money from D. Galvin, and proposed to assign and place said stock as security for such loan. That he expected D. Galvin to arrive on a train, and consummate the loan and delivery of the security, and, in order to facilitate the transaction, as D. Galvin would have but a few moments to devote thereto, plaintiff had made this indorsement of assignment in advance of consummating such loan. That, as appears to be conceded, the loan in question was not consummated at all, and thereafter plaintiff called upon the secretary of defendant, and sought to obtain possession of his shares of stock, but defendant's secretary, as appears, did not deliver the same, saying there would be some new blank certificates of stock in possession of the company in a few days, and that when the same...
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