Hibbert v. MacKinnon

• Citation: 79 Wis. 673,49 N.W. 21
• Parties: HIBBERT v. MACKINNON ET AL.
• Decision Date: 03 June 1891
• Court: United States State Supreme Court of Wisconsin

79 Wis. 673

49 N.W. 21

HIBBERT

v.MACKINNON ET AL.

Supreme Court of Wisconsin.

June 3, 1891.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

This is an action in equity to enforce specific performance of an alleged parol contract for the sale and transfer of certain mining stock. In 1883 one Wakefield and six others, being owners of certain land in Ontonagon county, Mich., supposed to contain iron ore, executed to Samuel S. Vaughn and Nathaniel D. Moore a lease thereof known as a mining lease, for the term of 30 years, on certain conditions therein expressed. One of those conditions was that the lease should not be assigned without the consent of the lessors. One Bowen had a one-fifth interest in the lease, and afterwards another interest therein was assigned to one Hoffman. The interests of Bowen and Hoffman together was one-third of the whole, leaving a one-third interest in each of the original lessees, Vaughn and Moore. It is understood that Vaughn controlled Bowen's interest. In the summer of 1885, Vaughn opened negotiations with Henry D. and J. W. Smith to sell such lease to them, and obtained the consent of the lessors to such sale. These negotiations ended without any sale being made. Afterwards both Vaughn and Moore had negotiations with Wakefield for a sale of the lease, but no sale was made to him. Thereupon, in August, 1885, Vaughn renewed negotiations with the Smiths, which resulted in the sale to them of his interest and that of Bowen in the lease. Moore joined in the assignment of the lease to the Smiths under an agreement with them that he should retain his one-third interest, which seems to have been afterwards reconveyed to him by the Smiths pursuant to the agreement. The Smiths and their associates then organized a corporation under the laws of Michigan, known as the “Sunday Lake Mining Company,” to which the lease was duly assigned, and one-third the capital stock of such corporation was issued to Moore as and for his interest in the lease. It is claimed in this action that Vaughn desired to dispose of the lease of the Sunday Lake property, while Moore wished to keep and develop the property, believing it to be rich in minerals; that Vaughn offered Moore 1,000 shares of the stock of a corporation known as the “Aurora Iron Mining Company,” if he would consent to a sale and transfer of the lease; and that Moore accepted such offer, and in consideration thereof consented to the sale, and joined in the assignment of the lease to the Smiths. Vaughn died in January, 1886, testate, bequeathing his stock in the Aurora Company, being 1,016 shares, to his widow, who is also the executrix of his will. She afterwards intermarried with one Mackinnon, and is the defendant Emeline Vaughn-Mackinnon. Due demand upon her was made by Moore for the Aurora stock, but she refused to assign and deliver the same to him. Moore assigned his interest in and right to such stock to the plaintiff; who thereupon, in 1888, commenced this action against Mrs. Mackinnon and the Aurora Company to compel her to deliver the stock pursuant to the alleged contract of her husband, and to compel the company to pay over to him certain accrued dividends thereon held by the company. The defendant company made no defense to the action. Mrs. Mackinnon answered, among other things, denying that her former husband ever promised to deliver or assign such stock to Moore. The circuit court found that Vaughn promised and agreed to assign the 1,000 shares of Aurora stock to Moore, and gave judgment for plaintiff for the specific performance of such agreement, requiring Mrs. Mackinnon to assign the 1,000 shares of Aurora stock to plaintiff, and requiring the defendant company to pay over to the plaintiff the dividends thereon retained by it. The defendant, Mrs. Mackinnon, appeals from such judgment.Silverthorn, Hurley, Ryan & Jones, and E. E. Chapin, for appellants.

Turner & Timlin, for respondent.

LYON, J., ( after stating the facts as above.)

We are of the opinion that this action for specific performance of the allegedcontract by Samuel S. Vaughn to deliver to Mr. Moore the 1,000 shares of Aurora stock in question cannot be maintained for two reasons. These are: (1) The alleged contract is not established by clear and satisfactory evidence; and, (2) were it so established, there is no adequate consideration therefor.

I. The circuit court found that in August, 1885, Mr. Vaughn agreed to transfer to Mr. Moore 1,000 shares of Aurora mining stock, in consideration that the latter would consent to a sale of the Sunday Lake mining lease, of which they were part owners in common. The court states in the findings the testimony upon which it is based, as follows: “That, immediately after said agreement was entered into between said Vaughn and Moore, the said Vaughn informed the witness W. J. Ryan of the agreement, and stated to him, ‘I gave Capt. Moore a thousand shares of the Aurora stock, and settled, and he signed the lease;’ and the same evening stated the same fact to the witnesses H. S. Benjamin and Laura D. Benjamin; and about the same time informed the witness J. Wells Smith of the agreement between him and the said Moore, and stated to him that he had agreed to give the said Moore 1,000 shares of the said Aurora stock, and about two months afterwards again informed the witness Smith of the agreement, and promised to give the said Moore 1,000 shares of the Aurora stock; and also, shortly after said agreement, informed the witness Burton that he had agreed to give the said Moore 1,000 shares of the said Aurora stock. About two months before the death of the said Vaughn he stated to the witness Fisher that he had 1,000 shares of Aurora stock which belonged to said Moore.” Much of the testimony of the witnesses above named is greatly overstated. Neither H. S. nor Laura Benjamin testified that Vaughn stated to them the same fact which it is found he stated to Ryan, or anything which is...