Guilford v. Mason

• Decision Date: 20 February 1901
• Citation: 22 R.I. 422,48 A. 386
• Parties: GUILFORD v. MASON.
• Court: Rhode Island Supreme Court

48 A. 386

22 R.I. 422

GUILFORD

v. MASON.

Supreme Court of Rhode Island.

Feb. 20, 1901

Assumpsit by Arthur W. Guilford against James Mason. Plaintiff was nonsuited, and he petitions for a new trial. Granted.

Tillinghast & Murdock, for plaintiff. Edwards & Angell, for defendant.

TILLINGHAST, J. This is assumpsit on the following agreement to convey stock: "This agreement made this thirty-first day of March, A. D. 1900, witnesseth: That James Mason, of Providence, Rhode Island, agrees to and with Arthur W. Guilford, of said Providence, that he will at any time between the date hereof and April 10, 1900, upon payment to him of the sum of eight thousand (8,000) dollars, transfer and deliver by proper papers of transfer four thousand (4,000) shares of the capital stock of the Interstate Petroleum Company. The consideration for this option is one hundred (100) dollars, the receipt of which is hereby acknowledged by said Mason from said Guilford, which sum shall be kept and retained by said Mason as full payment for this option in case that the contract for the sale of stock is not consummated. It is nevertheless agreed that, if the sale of said stock is consummated according to the terms above mentioned, then the said sum of one hundred (100) dollars shall be applied to the payment of said sum of eight thousand (8,000) dollars, leaving a balance of seven thousand nine hundred (7,900) dollars. It is further agreed as a part of the consideration for the price to be paid for said stock that when the sale of said stock is completed according to the terms as above stated, then the said Mason shall thereupon execute a general release for all claims and demands which he has, or may have, either at law or in equity, against the Interstate Petroleum Company, or any of its officers or agents, arising from the sale of the abovementioned stock to said Mason. [Signed] James Mason. Arthur W. Guilford. Witness: Irving Champlin." At the trial of the case in the common pleas division the plaintiff testified that after making the contract he immediately made provision to pay the money called for thereby; that on Thursday of the week following the making thereof he went in search of the defendant to tender him the money, but could not find him; that he went to his house, but he was not at home; that he was told by the lady who came to the door that defendant was in town, and would probably return some time in the evening; that plaintiff told her he would endeavor to see Mr. Mason the next day; that he went again to defendant's house the next day, and was then informed that he was out of town, and would not return until the next week; that on the following Monday plaintiff solicited the attention of his attorney to the matter, and asked him to accompany plaintiff to defendant's house to find him, which he did, but that the house was closed, and everybody, to all appearances, was away; that plaintiff then called at the office of defendant's attorney, Mr. Champlin. to see if he could give him any information as to defendant's whereabouts, but that he was out of town. He also made inquiry at Mr. Champlin's office, of the lady there in charge, if any person was there who could receive the money in behalf of Mr. Mason, and was informed that there was not; that they were all away, and would not return until the following week. On the plaintiff's return from defendant's residence, he wrote and posted a letter to him, which was as follows: "Providence. R, I., April 6, 1900. Mr. James Mason, Providence, R. I.—Dear Sir: I have called twice at your home, on the 5th and 6th inst., for the purpose of getting the stock which you have agreed to deliver. On my last call I was informed by the lady who met me at the door that you were out of town, and would not return until next week. I take this opportunity to notify you that unless you meet me before April 10th at such time and place that you may appoint, prepared to carry out your contract, I shall hold you liable for loss and damage I may sustain. Yours, truly, Arthur W. Guilford." On April 9th a letter was written to defendant's attorney, which was as follows: "Providence, R. I., April 9th, 1900. Mr. Irving Champlin—Dear Sir: Concerning my client Mr. Guilford's contract to buy from your client Mr. Mason the stock of the Interstate Petroleum Company, I desire to say that in company with Mr. Guilford we have called at your office to-day with the funds, prepared to carry out our part of the contract. We were unable to find any one at your office in charge of this business. We have also been to the house of Mr. Mason, and were unable to gain admission. I would also state that Mr. Guilford has called at Mr. Mason's house on two previous occasions for this very purpose. Under the contract, I think the option expires to-day, but, to treat you perfectly fair in the matter, we will hold ourselves ready to pay you for the stock at any time to-morrow, the 10th, and will tender you the funds in payment for the same at any reasonable place which you may appoint. A copy of this letter has also been sent to Mr. Mason. Yours, very truly, F. W. Tilllnghast." A copy of this letter was sent to defendant on the same day. Plaintiff testified that he duly paid defendant the $100 for the option in accordance with said agreement, and from the time he took the option until the expiration thereof he did his best to find the defendant, but was unable to do so. He further testified that when he went to defendant's house on the 5th of April he had with him a check for $4,000, and the balance of the agreed price of the stock in money. On the 9th of April plaintiff went again to defendant's house with certified checks for the amount called for by the agreement,—$8,000, —but failed to find Mr. Mason at home. Plaintiff had these checks, and was ready to deliver them on the 10th, and also on the 11th, of April. By his letter of April 9th he tried to get defendant to fix a time and place where the contract could be consummated, but no attention was paid to it in short, the evidence shows that the plaintiff was ready, willing, and anxious to perform his part of said agreement by paying said sum of $8,000 for the stock, from the 5th of April down to the time when the option expired, and that he used every reasonable effort during that time to find the defendant, so that the agreement of sale might be consummated. After the expiration of the 10 days the defendant refused to convey the stock, and returned the check for the $100 which had been given to him by the plaintiff for the option, the latter act showing that the defendant did not consider plaintiff in default in the premises, as the contract provided that said sum should be kept and retained by the defendant as full payment for the option in case the contract was not consummated.

The only question of law which is presented is whether, in view of the facts stated, the ruling of the common pleas division in granting a nonsuit was correct. The ground upon which the nonsuit was granted was that the plaintiff did not show that he was at any time prepared to make a legal tender to defendant of the amount called for by the agreement. The plaintiff does not claim that at any of the times when he went to defendant's house to obtain the performance of said agreement on the part of defendant, or at the times when he went to the office of defendant's attorney, he was prepared to make a strict legal tender of the amount called for by the agreement, but simply that he was ready and willing to pay said amount And his contention is that this...