Haskins v. Dern

• Decision Date: 16 March 1899
• Citation: 19 Utah 89,56 P. 953
• Court: Utah Supreme Court
• Parties: EZRA D. HASKINS, RESPONDENT, v. JOHN DERN, APPELLANT

56 P. 953

19 Utah 89

EZRA D. HASKINS, RESPONDENT, v. JOHN DERN, APPELLANT

Supreme Court of Utah

March 16, 1899

Appeal from the Third District Court, Salt Lake County, Hon. A. N Cherry, Judge.

Action by plaintiff on a memorandum of agreement for the delivery of certain stock or the payment of a sum in the agreement mentioned. From a judgment for plaintiff defendant appeals.

Affirmed.

Messrs Pierce, Critchlow & Barrette, and J. E. Frick, Esq., for appellant.

The writing in question contains all the elements of a bailment and not a single element of a sale. Am. and Eng. Ency. of Law, 2d ed., Vol. 3, p. 33.

If Mr Dern bought his stock as the court ruled, then he bought it on the 20th day of December, 1895, and the title was in him from that date, subject to being divested by his returning the stock. In such a sale the title passes immediately. Story on Sales, Sec. 249; Kitchkiss v. Higgins, 52 Conn. 205; 25 Am. Rep. 582, and note at p. 586. See also, The Elgee Cotton Cases, 22 Wal., 195.

For the purpose of showing that the title does not pass under a writing similar to the one in question, the case of Dunlap v. Gleason, 16 Mich. 158, is very much in point. See also Chamberlain v. Smith, 44 Pa. 431; Porter v. Pettingill, 12 N.H. 299.

This writing will be searched in vain for a single word whereby respondent agrees to anything whatever. In what part of it does he agree to part with the title, and in what part does he agree to receive any sum of money or other thing of value for such title? As a bailment, the agreement is certainly good, for the reason that in bailment the delivery and receipt of the property is a good consideration for the promise to return the same, or to pay for it on failure so to do. The receipt of it by the bailor alone is sufficient upon which to base a promise to return it; in fact, such a promise is implied as a part of the transaction. In a purchase and sale, however, another element is indispensable. The vendor must agree to part with his title, the essence of ownership, for a consideration, and the vendee must agree to receive the title, not merely possession, for the consideration expressed. In a sale there is more than a mere change of possession, there is, and always must be, both the intent and the actual change of ownership of the property as between the parties to the agreement. These essentials must not only be concurrent, but also mutual. Lester v. Jewett, 12 Barber, 503; Mers v. Insurance Co., 68 Mo. 127; R. R. Co. v. Dane, 43 N.Y. 242; Maynard v. Brown, 41 Mich. 298.

The following cases all, in some form, pass upon the question that mutuality is indispensable to an enforcible contract. Mc Kinley v. Watkins, 13 Ill. 140; Stiles v. Mc Clellan, 6 Colo., 89; Railway Co. v. Mitchell, 38 Tex. 85; Bean v. Burbank, 16 Me. 458; Stembridge v. Stembridge, 87 Ky. 91 (7 S.W. 611); Wilkinson v. Heavenrich, 58 Mich. 576 (26 N.W. 139); Stensgaard v. Smith, 43 Minn. 11 (44 N.W. 669).

As to admission of parole evidence see Jones on Evidence, Vol., 2, Secs. 458-60; Case Mfg. Co. v. Saxman, 138 U.S. 436; Farmer's L. & T. Co. v. Coml. Bank, 82 Am. Dec., 689; Springsteen v. Sampson, 32 N.Y. 706.

The parties did not make (the time fixed for the return of the property the essence of the agreement) in express terms, and there is nothing in the agreement from which such an intention can be inferred. Sanford v. Weeks, 38 Kan. 319; Lynch v. Bechtel, 48 P. 1113.

Messrs. Bennett, Harkness, Howat, Bradley & Richards, for respondent.

Parol evidence is not admissible to vary the terms of a written agreement. Moyle v. Congregational Society, 50 P. 806; Cohen v. Jackaboise, 59 N.W. 665; Hostetter v. Anman, 20 N.E. 506; Singer Mfg. Co. v. Sults, 47 N.E. 341; Association v. Townley, 65 N.W. 1062; Mc Shane Co. v. Padian, 142 N.Y. 207; Reid v. Diamond Plate Glass Co., 85 F. 193.

Parole evidence is not admissible to show that a written agreement was not intended to be binding upon the parties according to its terms. Atkinson v. Blair, 38 Iowa 156; Barhydt v. Bonner, 55 Iowa 717; Bacon v. Green (Fla.), 18 So. 870; Washabaugh v. Hall (S. D.), 56 N.W. 82; Phelps v. Sargent (Minn.), 76 N.W. 25.

Under the guise of showing a partial failure, or want of consideration, defendant can not introduce parole evidence that varies the terms of the written agreement. Atherton v. Dearmond, 33 Iowa 353; Works v. Hershey, 35 Iowa 340; Dickson v. Harris, 60 Iowa 727; Bank v. Foote, 12 Utah 157.

In the absence of fraud, mistake, or ambiguity, the written agreement is the only competent evidence of the contract. Sylvester v. Carpenter Paper Co. (Neb.), 75 N.W. 1092.

Nor does it make such testimony competent that the terms of the contract are unreasonable, and the terms sought to be made by the parole testimony are reasonable. Sanborn v. Plowman (Tex.), 35 S.W. 193; Colorado City v. Townsend (Colo.), 47 P. 663.

A written acknowledgment that there is due a certain sum of money "on settlement this day," can not, in the absence of fraud or mistake, be varied by oral testimony in regard to such settlement. San Antonio Lumber Co. v. Dickey (Tex.), 27 S.W. 955.

In a suit upon a note, payable absolutely, defendant can not give evidence that he took property of plaintiff to sell and dispose of, as if it were his own, and sold it to A., and took A.'s note therefor, which was not collected and was uncollectible, and he gave plaintiff the note in suit, with oral agreement that it was not to be paid unless as notes were paid. Underwood v. Simons, 12 Met., 275 Rose v. Learned, 14 Mass. 154; Spring v. Lovett, 11 Pick, 417; St. Louis Perp. Ins. Co. v. Homer, 9 Met., 39; Allen et al. v. Furbish, 4 Gray, 504; Smith, Admr. v. Thomas, 29 Mo. 307.

The distinction between a bailment and an agreement of "sale or return," is, that in case of bailment the person to whom possession is given is under the obligation to return the identical property; in a case of "sale and return," he may at his option return the property or pay for it at the agreed price. 1 Beach on Contracts, Sec. 746; Powder Co. v. Burkhardt, 97 U.S. 110, 116; Sturm v. Boker, 150 U.S. 312; Dearborn v. Turner, 16 Me. 17; Bushwell v. Bickwell, 17 Me. 344, 346, citing Jones on Bailments and Story on Bailments; Perkins v. Douglass, 20 Me. 317; Hunt v. Wyman, 100 Mass. 198.

We contend the law to be, that where a party upon a good consideration binds himself to do a certain thing, or pay a stipulated sum of money, at his election, the contract being in the alternative, the sum named is not a penalty, and on failure to do the certain thing he is absolutely bound to pay the stipulated amount. Pearson v. Williams, 24 Wend., 244; Stevens v. Herzler, 19 So. 838; Texas, etc., Co. v. Marlor, 123 U.S. 687; Perry v. Smith, 22 Vt. 302; Cleveland, etc., Co. v. Kelly, 5 Ohio St., 180; Nobles v. Bates, 7 Cow, 307; Taylor v. Smith, 49 N.Y.S. 41.

Where the debtor has the election to pay either money or property, if he fails to make tender on the day fixed for payment, he thereby loses his election, and the obligee has the right to demand money. Pearson v. Williams, 24 Wendell, 244; Texas, etc., Ry. Co. v. Marlor, 123 U.S. 687; Roberts v. Beatty (Pa.), 21 Am. Dec., 410; Farmers' L. & T. Co. v. Canada, etc., Co., 127 Ind. 250, 11 L.R.A. 740; Renwick v. Goldstone, 48 Cal. 554.

The mere readiness and willingness to pay the debt when due amounts to nothing without an offer or tender of payment by him and a refusal by the creditor. 25 Am. & Eng. Ency. of Law, 916, and cases cited.

Tender of property easily carried, if no place is named, should be made at the residence of the creditor. 25 Am. & Eng. Ency. of Law, 920, and cases cited.

No demand for return of the stock was necessary, and it was the defendant's duty to tender it. Texas, etc., Ry. Co. v. Marlor, 123 U.S. 687; Taylor v. Smith, 49 N.Y.S. 41.

MINER, J. BARTCH, C. J., and BASKIN, J., concur.

OPINION

MINER, J.

On December 20, 1895, the plaintiff Haskins was the owner of 2,010 shares of capital stock of the Silver Lode Mining and Milling Company, and on that day he caused a certificate thereof to be made out in the name of the defendant Dern, and delivered the same to him, whereupon the defendant executed and delivered to the plaintiff an agreement in writing as follows:

"SALT LAKE CITY, UTAH, Dec. 20, 1895.

"Received of Ezra D. Haskins one certificate of stock in the Silver Lode Mining & Milling Company for two thousand and ten shares, No. 46, issued in the name of John Dern. I agree to return this stock to said Ezra D. Haskins on August 1, 1896, or pay to the said Ezra D. Haskins the sum of one dollar per share therefor. Said John Dern agrees to pay all legal assessments levied upon said stock during the time he holds the same. It is agreed that if Hudson Smith takes up the option which he has on fifty thousand shares of the capital stock of said company, that Mr. Dern will return said stock to said Haskins upon the taking up of said option.

JOHN DERN."

The defendant not having returned the stock or paid for the same on August 1, 1896, the plaintiff on August 26, 1896, brought this suit on the above agreement, alleging ownership of the stock on December 20, 1895, the delivery of it to the defendant, the execution of the contract, the failure to return the stock within the time named in the contract, and the refusal of the defendant to pay for the same at the time named.

The defendant in his answer admitted that the stock was the property of the plaintiff on December 20, 1895, the delivery of the stock to him, and that he executed and delivered to the plaintiff the contract sued upon. For further answer and as an affirmative defense, the defendant alleged that the stock was delivered to him under the following conditions,...