Jessop v. Lvory

• Decision Date: 04 November 1895
• Docket Number: 51
• Citation: Jessop v. Lvory, 33 A. 352, 172 Pa. 44 (Pa. 1895)
• Parties: C. J. Jessop v. R. B. Lvory, Appellant
• Court: Pennsylvania Supreme Court

33 A. 352

172 Pa. 44

C. J. Jessop v. R. B. Lvory, Appellant

No. 51

Supreme Court of Pennsylvania

November 4, 1895

Argued October 14, 1895

Appeal, No. 51, Oct. T., 1895, by defendant, from judgment of C.P. Armstrong Co., March T., 1892, No. 126, on verdict for plaintiff. Affirmed.

Assumpsit on written agreement. Before RAYBURN, P.J.

At the trial it appeared that in May, 1889, plaintiff purchased from defendant one hundred shares of the capital stock of the Rolled Steel Carriage Wheel Company. He paid therefor the sum of $1,000, taking defendant's receipt therefor.

Plaintiff testified that defendant made a special parol agreement to repay plaintiff the purchase money with interest on demand at any time plaintiff became dissatisfied with the stock. Plaintiff averred that in July, 1889, he became dissatisfied with the stock, offered to return the same, and demanded repayment of his money, which was refused. Defendant denied that he had made any such agreement, and claimed that the only condition upon which plaintiff was to have a return of his money was embraced in the receipt given to the plaintiff at the time the money was paid, which was that the money should be repaid in case a patent which had been applied for was not obtained. He also claimed that even if such an agreement had been made in plaintiff's favor he had waived it.

The court charged in part as follows:

The issue that you are now trying is framed between Charles J Jessop, the plaintiff, and R. B. Ivory, the defendant. The plaintiff seeks in this action to recover from the defendant one thousand dollars; and in support of his allegation in this case, he contends that at one time he purchased from the defendant a certificate of stock in the corporation known as the Rolled Steel Carriage Wheel Company. That at the time of the purchase of this stock, the contract or agreement between the plaintiff and the defendant was that, if at any time the plaintiff became dissatisfied with this certificate of stock that the defendant would return to him, upon demand, the amount of money that the plaintiff paid to the defendant for this stock, together with interest thereon from the time of the demand.

Dr. Charles Jessop comes upon the witness stand and testifies in your hearing that a contract was made between him and Mr. Ivory; and to support him in the allegation some other witnesses are called, the first, I believe, being Walter Sturgeon, who testifies that he was present with Mr. Jessop at the office of the defendant at the time the arrangement or agreement was made to take the stock, and that the defendant there had said that he would do with Jessop the same that he had done with Sturgeon; that he would guarantee to refund the money at any time he became dissatisfied with the stock.

R. A. McCullough is called upon the stand on the part of the plaintiff; he testifies that he had several conversations with Mr. Ivory in reference to the sale of stock. That Mr. Ivory, the defendant, had requested him at different times to purchase stock, and that Ivory had said to McCullough that he had sold to Jessop and Sturgeon, and to Moesta, and that he had agreed to refund the money if they became dissatisfied with the stock, and that he had taken back Moesta's stock.

Now, on the part of the defendant as to the arrangement or contract, Mr. Ivory comes upon the stand and testifies that he did sell this stock to Dr. Jessop; that he gave to him a receipt for the money; that he gave him the stock, and that Dr. Jessop gave him a check for a thousand dollars; he states that there was no agreement made between him and Dr. Jessop as to the guaranteeing the refunding of the money; that there was no agreement of that kind made; that he never agreed to refund this money upon Jessop becoming dissatisfied with the stock; that the only agreement that was made was that contained in a receipt that he gave to Dr. Jessop, that the money would be refunded if a patent was not procured for this steel wheel.

Mr. Gettleman, another witness, is called on the part of the defendant in reference to this arrangement, who testifies that he came to Kittaning from Ford City at the request of the plaintiff, Dr. Jessop, to examine the model, or part of the wheel that Mr. Ivory had in his office on exhibition; that he went there the first time in the afternoon; at that time Mr. Sturgeon and Dr. Jessop were with him, and that they were in and examined the wheel, and that they came out of the office and walked around; they finally came back to Ivory's office, and Ivory came in when they were there, and Mr. Sturgeon was not present at that time, but that they were in there some twenty or thirty minutes and examined the model, talked about it, its practicability and durability, and that the plaintiff, Dr. Jessop, when they were leaving the office, told the defendant, Ivory, to reserve a hundred shares of stock for him; he testifies that that there was no agreement that he heard, or arrangement made, that the money was to be returned for the price of this stock.

He also testifies that if there had been anything of that kind said at that time that he would have heard it; he states also that this was the only time that he was present when there was any conversation passing between Ivory, the defendant, and Jessop, the plaintiff.

Now, gentlemen, that is about the evidence on the part of the plaintiff and on the part of the defense in reference to this agreement of refunding the money. The defendant also contends that, even if this arrangement had been made to refund the money, the arrangement made between Jessop and Ivory for Ivory to refund the money upon Jessop becoming dissatisfied with the stock, that subsequent to that time there were acts of ownership over this stock exercised by the plaintiff, Jessop, that that would be, or was an abandonment of the arrangement or agreement. You will remember that the plaintiff states that he took the certificate of stock and went to Mr. Ivory's house, and demanded the return of the money. Ivory states that Jessop was there at his house, but there was nothing said about the guaranteeing of the stock; he says that Jessop demanded his money at that time, and said if he would not get it he would expose the company.

[Now the evidence in reference to the contention of the defendant in this case as to the manner in which Jessop treated the stocks as to establish an ownership after this demand had been made of him, was a proxy that he gave S. B. Cochran to vote this stock at a stockholders' meeting where directors were to be elected, and a telegram that the plaintiff sent Ivory to Pittsburg to sell his stock, and a letter that was written by the plaintiff to the defendant at Pittsburg inquiring as to how the plant was getting along and how the stock was. Now as to the telegram that was sent, Jessop, the plaintiff, states that that telegram was sent at the request of Ivory, and that Ivory fixed the amount at which the stock was to be sold. Ivory says that he did not do that. The dispatch reads this wise: "Kittanning, Pa., January 13th, '90. R. B. Ivory, Dispatch Building, Pittsburg, Pa.: Sell my 100 shares of wheel stock at $15 per share." Now these exhibits of evidence, the proxy and the telegram, and the letter, are all to be taken into consideration by you in determining this case. We say to you that if the agreement, as alleged by the plaintiff, Jessop, was entered into at the time of the sale of this stock, that he was to have his money returned upon his becoming dissatisfied with it; if that is true in this case and there is nothing offered on the part of the defense to show a waiver of that or an abandonment of the contract by the plaintiff, the plaintiff would be entitled to recover. But we also say to you that the defendant, if he, by this proxy, telegram and letter, would show to you that he had exercised rights of ownership over this greater than would be required to maintain and keep himself safe in this matter, then that would be showing such ownership as would be an abandonment of the former contract, if there were one.]

[The plaintiff testifies that at the time he paid to Ivory the money that he, Ivory, gave to him a receipt for the money. That receipt is not before you, although the defendant has offered in evidence another receipt which he says is the form of the receipt that was given by him, and authorized to be given by him by the company upon the sale of this stock to any person. The form of the receipt was that the money was to be refunded upon the contingency of not procuring a patent for the steel wheel. Now, if that was the contract between the parties at that time, and that was the only contingency that existed in this contract between them as to the returning of the money, then it being in evidence before you that a patent had been procured for this wheel, the plaintiff could not recover in this case. That is the only contingency that was in the contract between them, because it is not disputed before you here but what a patent had been procured for the wheel.]

The plaintiff testifies that he made the demand for this money some time in June, I think he testified to; and that he made a demand subsequent to that time. The defendant says that the demand was not made in June at all; that it was made in the latter part of December or the first part of January, and he fixes that, he says, as to the time he had sold his property; that he sold his property in December to Mr. Heilman, and that this meeting with Jessop, in his house -- that is Ivory's house -- occurred just a few days after that.

There has been some evidence offered here on the part of the plaintiff on the matter of contradiction as to the evidence of the defendant. The defendant was asked...