Last Chance Ranch Co. v. Erickson

• Decision Date: 10 October 1933
• Docket Number: 5023
• Citation: 25 P.2d 952,82 Utah 475
• Court: Utah Supreme Court
• Parties: LAST CHANCE RANCH CO. v. ERICKSON

25 P.2d 952

82 Utah 475

LAST CHANCE RANCH CO. v. ERICKSON

No. 5023

Supreme Court of Utah

October 10, 1933

Appeal from District Court, Third District, Tooele County; Wm. H Bramel, Judge.

Action by the Last Chance Ranch Company against Hilda Erickson. Judgment for plaintiff, and defendant appeals.

REVERSED AND REMANDED, with directions.

H. L Mulliner, of Salt Lake City, for appellant.

G. M Sullivan and Chris Mathison, both of Salt Lake City, for respondent.

STRAUP, Chief Justice. ELIAS HANSEN, FOLLAND, EPHRAIM HANSON, and MOFFAT, JJ., concur.

OPINION

STRAUP, Chief Justice.

This action was brought for specific performance of an alleged agreement and to require the defendant, Hilda Erickson, in accordance therewith, to assign and deliver to the plaintiff a certificate owned by her for 66 shares of the capital stock of the Grantsville National Farm Loan Association, or to procure a transfer thereof to be made to the plaintiff on the books of the association.

The complaint was filed in the cause January 11, 1928. On issues joined, several proceedings and hearings were had which finally resulted in a judgment rendered and entered January 11, 1931, in favor of the plaintiff and against the defendant. The defendant appeals.

By the complaint it is alleged that the defendant was the secretary of the Grantsville National Farm Loan Association, and as such secretary had the authority to transfer the shares, when properly requested so to do by the owner thereof and when properly and regularly indorsed and duly presented for transfer; that on October 9, 1922, the defendant, Hilda Erickson, in her own right, was the owner of 320 acres of land fully described, situate in Tooele county, subject to a mortgage of $ 6,600 in favor of the Federal Land Bank of Berkeley, Cal.; that she also was the owner of 66 shares of the capital stock of the Grantsville National Farm Loan Association, which stock was issued to her under the rules and regulations pertaining to federal farm loans at the time she gave the mortgage upon the real property and in connection with the loan obtained by her. It then is alleged that on October 9, 1922, the plaintiff purchased from her the real estate "and said 66 shares of stock in said Grantsville National Farm Loan Association, for the sum of $ 18,400, which sum the plaintiff then and there paid to the defendant"; that the purchase was subject to the mortgage loan of $ 6,600 which the plaintiff assumed and agreed to pay in addition to the $ 18,400, and that in consideration thereof the defendant "agreed and promised in addition to convey the said land to the plaintiff, to assign to the plaintiff said 66 shares of the capital stock of the said Grantsville National Farm Loan Association and transfer or procure the same to be transferred to the plaintiff on the books" of the association, or otherwise to give the plaintiff written evidence of the plaintiff's ownership of the shares of stock.

It then further is alleged that the defendant recognized plaintiff's ownership of the stock "by the payment of it of certain dividends upon same"; that the defendant made certain claims against the plaintiff for the value of personal property upon the land and taken over by the plaintiff, and declined to assign and transfer the stock until the plaintiff made payment to the defendant for such personal property, and that certain claims were made by the plaintiff against the defendant for the shares of stock; that thereupon the plaintiff and the defendant on the 22d day of January, 1924, settled their respective claims upon the basis that the plaintiff pay to the defendant $ 680.55, "which payment should include and cover the personal property so taken over by the plaintiff and should include and cover any and all differences concerning said personal property and concerning the said 66 shares of stock, and that in consideration of said payment said defendant again agreed and promised to forthwith assign and deliver to the plaintiff and to transfer or procure to be transferred to the plaintiff" the shares of stock; that the defendant, in pursuance of the agreement of January 22, 1924, and upon the payment of $ 680.55, "then and there expressly agreed and promised to forthwith and immediately upon her return to Grantsville to assign to plaintiff and transfer to it" the shares of stock; but that the defendant at all times failed and refused to do so and "now wrongfully asserts that plaintiff is not the owner of said stock and wrongfully" and in violation of her agreement refuses to assign or transfer the shares of stock to the plaintiff. Nowhere is it alleged in the complaint whether the promise or agreement to sell or assign the shares of stock was oral or in writing.

The defendant by her answer admitted she was the owner of the lands conveyed to the plaintiff subject to the $ 6,600 mortgage in favor of the Federal Land Bank of Berkeley; that she was the secretary of the Grantsville National Farm Loan Association, and that she was the owner of the 66 shares of the capital stock of the association and refused to assign or deliver them to the plaintiff; that she on October 9, 1922, sold and conveyed the real estate to the plaintiff for the sum of $ 18,400, subject to the mortgage of $ 6,600 which the plaintiff assumed and agreed to pay. She, however, denied that she sold, or at any time agreed to sell, the shares of stock to the plaintiff or to transfer them, or to cause them to be transferred, to the plaintiff. She further admitted that the plaintiff on or about the 22d day of January, 1924, paid her $ 680.55, but in settlement of a claim or demand asserted by her against the plaintiff for supplies and merchandise sold to it, and denied that thereby or otherwise she promised or agreed to assign or transfer the shares of stock to the plaintiff, and denied that any part of the consideration paid for the conveyance of the land, or in settlement of the demand or claim referred to, was for the sale or assignment or transfer of the shares of stock; and otherwise denied all the allegations of the complaint not specifically admitted. The defendant further alleged that the cause of action sued on by the plaintiff was barred by the statute of limitations, especially by section 6445, Comp. Laws Utah 1917, that "Civil actions can be commenced only within the periods prescribed" in the succeeding chapters "after the cause of action shall have accrued;" section 6467, that the period to commence "an action upon a contract, obligation, or liability not founded upon an instrument of writing" was four years; and by section 6474, that "an action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued."

The court found the issues in favor of the plaintiff substantially as alleged in the complaint, and held that the action was not barred by limitation. So far as the particular matters are involved on the appeal, the court found that the defendant was the secretary of the Grantsville National Farm Loan Association; that she was the owner of 320 acres of land subject to the mortgage of $ 6,600 payable to and held by the Federal Land Bank of Berkeley, and that she also was the owner of 66 shares of the capital stock of the Grantsville National Farm Loan Association, which she had subscribed for in connection with the $ 6,600 loan, and that the stock was held as collateral security for the payment of the mortgage; that her husband was the owner of 320 acres adjoining the land owned by her, and that on October 9, 1922, she and her husband sold and conveyed the section of land, the 640 acres, to the plaintiff, and that "the defendant then and there as a part of said transaction and in consideration thereof sold and agreed to assign and transfer to the plaintiff the 66 shares of the capital stock" of the association, "all for the agreed price of $ 18,400 cash and the assumption by the plaintiff of the mortgage upon the land of the defendant in the sum of $ 6600"; that on or about August 10, 1923, the defendant paid to the plaintiff $ 10.70 dividends accruing on the 66 shares of stock; that on January 22, 1924, the parties had a settlement concerning differences between them whereupon the plaintiff paid the defendant $ 680.55 in full satisfaction of her claims against the plaintiff, and that in consideration of such payment "the defendant promised forthwith to deliver to the plaintiff" the shares of stock, but that the defendant had refused to do so; that "in the manner hereinabove stated the defendant continued to recognize her contract to sell, assign and transfer" the shares of stock to the plaintiff, until after the month of January, 1924, and that she thereafter repudiated the contract and refused to assign or deliver or transfer the shares of stock to the plaintiff; and, the defendant having theretofore shown her intention "of performing her part of said contract in the future and by reason of the circumstances aforesaid, and particularly the said acts and conduct on the part of the defendant, a reasonable time for the performance of said contract on her part had not expired on the said 22nd day of January, 1924, and that she did not until after that date, deny said contract or breach the same." No finding was made as to whether the promise or agreement to sell or assign the shares of stock was oral or in writing. However, whatever promise or agreement there was as testified to by the plaintiff was oral and not in writing. Nor was the value of the stock alleged or found.

Upon such findings the conclusion was reached that the action was not barred, and a judgment or decree rendered and entered that the "defendant, Hilda Erickson, by a proper endorsement, or other proper...