Irwin v. Blain

• Decision Date: 06 January 1948
• Citation: 58 A.2d 618
• Parties: IRWIN v. BLAIN et al.
• Court: New Hampshire Supreme Court

58 A.2d 618

IRWIN

v.BLAIN et al.

Supreme Court of New Hampshire.

Jan. 6, 1948.

Exceptions from Superior Court, Sullivan County; Wheeler, Judge.

Suit in equity by George A. Irwin against Armand C. Blain and Irwin Motors, Inc., for specific performance of a contract to sell shares of defendant corporation's stock to plaintiff and an injunction against transfer of such shares to any one else. Decree for plaintiff, and defendants bring exceptions.

Exceptions overruled.

Bill in equity, praying that the defendant Blain be ordered to transfer and sell to the plaintiff Irwin as of March 7, 1946, 150 shares of stock in Blain & Irwin, Inc., now Irwin Motors, Inc., upon receipt of $15,000 from the plaintiff and that the defendant company be restrained from transferring this stock to any one except the plaintiff. The dispute arises out of an agreement made between the parties on December 28, 1945, the material portions of which read as follows:

‘1. The said A. C. Blain agrees to sell to George A. Irwin said shares of stock, either in whole or in part, whenever requested to do so by the said George A. Irwin.

‘2. The amount to be paid said A. C. Blain by the said George A. Irwin for said stock is One Hundred ($100.00) Dollars per share. Upon the tender of the said One Hundred ($100.00) Dollars per share, the said A. C. Blain will transfer to the said George A. Irwin the number of shares of stock purchased.

‘3. The said George A. Irwin hereby agrees that so long as the said A. C. Blain is the owner of the stock herein referred to, in whole or in part, the said A. C. Blain shall receive two (2) per cent of the net profits, after taxation, of the Blain & Irwin, Inc. for every One Thousand ($1,000.00) Dollars worth of the stock which the said A. C. Blain owns, this amount to be paid to the said A. C. Blain in the form of dividends on his said stock; and that the combined salaries of said George A. Irwin and his wife Mary D. Irwin will not exceed six thousand dollars ($6,000) annually.

‘4. In computing the net profits after taxation for the purpose of the above Clause 3, the amount of interest and principal paid by the Corporation in any year on its note to the Indian Head National Bank for Thirty-five Thousand ($35,000) Dollars shall not be taken into consideration before determining said net profits.

‘In determining the net profits of the business after taxation as above mentioned, December 31 of each year shall be considered as the ending period of the year, and the purchase of the stock by George A. Irwin from A. C. Blain shall be made as soon as the net profits after taxation have been determined, but not later than the 15th of March of the year following the ending period.

‘6. The said George A. Irwin agrees to purchase said stock from the said A. C. Blain within a period of ten (10) years from the date hereof.’

The defendant Blain's claim is that the agreement had to run one year, or until December 31, 1946, before the plaintiff was entitled to purchase the stock. He contends that since there could be no reckoning of net profits under paragraph four of the agreement until the end of the first year of operations this portion of the agreement limits the plaintiff's right to purchase. The plaintiff maintains that the agreement as a whole, with special reference to clauses one, two and six which place no such limit upon the plaintiff's rights, must be construed to mean that he has the right to purchase at any time upon tender of the $15,000 which was made on April 17, 1946, and that the net profits could be reckoned thereafter and paid to the defendant. The Court found that the plaintiff was excused from making the tender earlier due to the absence from the State of the defendant, and this finding the defendant does not dispute.

The defendant Blain seasonably excepted to the Court's failure to find facts and to make rulings of law as requested by him and to the decree of specific performance in favor of the plaintiff. This decree provided in substance that the transfer should be made as of April 17, 1946 upon payment of $15,000 by the plaintiff to the defendant, and that the defendant should also receive as dividends 2% of the net profits of the concern for the calendar year 1946, for that portion of...