Lawley v. Wade
| Decision Date | 30 September 1911 |
| Docket Number | 2143 |
| Court | Utah Supreme Court |
| Parties | LAWLEY v. WADE et ux |
APPEAL from District Court, Seventh District; Hon. A. H Christensen, Judge.
Action by W. H. Lawley against Henry Wade and wife.
Judgment for defendants. Plaintiff appeals.
AFFIRMED.
King & King for appellants.
G. A Iverson and A. R. Barnes for respondents.
OPINION
The plaintiff, hereinafter designated appellant, as a cause of action against the defendants, hereinafter styled respondents, in his complaint alleged: "That on or about the 15th day of October, A. D. 1905, the defendants entered into a certain agreement by and with the plaintiff, by the terms of which defendants agreed that if plaintiff would render certain services, in aiding the defendants and others to acquire certain property in the vicinity of Kenilworth, Carbon County, Utah, and would also aid the defendants and others in the organization of a company to handle said property, the same being coal land, and would, if necessary, extend the credit of the plaintiff in behalf of the said defendant Henry Wade, and would to the extent of his ability aid and assist him in recommending said property, and in doing all things necessary for the complete organization of said company, that he would give said plaintiff 1000 shares of the capital stock of any company to be organized for the purpose of taking over the property referred to; that the plaintiff fully performed all of the terms and conditions of said agreement to be by him performed, and rendered the services, the aid and assistance required by him; that thereafter the said defendants and one A. A. Sweet and others organized the Western Coal & Coke Company, a corporation, for the purpose of taking over said land, and thereafter a reorganization of said company took place, and the name of said company and of the reorganized company was changed to the Independent Coal & Coke Company; that the plaintiff demanded from the defendants the 1000 shares of stock in the Independent Coal & Coke Company, but the defendants failed, neglected, and refused, and now do wholly fail, neglect, and refuse to transfer or deliver to plaintiff the said 1000 shares of stock; that the plaintiff is informed and believes, and therefore states the fact to be, that said stock is now of the value of $ 1.50 per share." Upon this complaint he demanded judgment for $ 1500. Respondents' answer thereto was a general denial.
Upon these issues the parties proceeded to trial. After appellant had produced his evidence and rested his case, respondents' counsel moved for a nonsuit upon substantially the following grounds: (1) That appellant had failed to establish any agreement or contract as alleged in his complaint; (2) that he had failed to prove that he had extended any credit to the respondents, or either of them; (3) that he had failed to prove that he had performed or rendered any services whatever as contemplated by the alleged contract; (4) that he had failed to prove that any of the property referred to in his complaint was acquired by the company which he testified was organized, and that he had failed to prove that any of the stock referred to in his complaint was ever issued, or that it was of any value whatever; (5) that he had failed to prove the alleged reorganization of the company as alleged in his complaint, or that the Independent Coal & Coke Company mentioned in his complaint had any relation to or was connected with the company that he alleged was organized; and (6) that while the appellant had alleged one contract in his complaint he had in fact attempted to prove another, and hence there was a fatal variance between the allegations of the complaint and the evidence offered in support thereof. Pending this motion counsel for appellant asked for time to amend his complaint, and, being given time, he prepared an amended complaint, which he offered to file.
Said amended complaint departed from the original complaint in the following particulars, namely, by alleging: That an alleged contract was entered into on the 15th day of April, 1905, whereby the respondents promised the things alleged in the original complaint; that appellant had fully performed all of the conditions; "that thereafter the said defendant Henry Wade, aided by one A. A. Sweet and others, organized the Western Coal & Coke Company, a corporation, for the purpose of taking a part of said property, and thereafter the Independent Coal & Coke Company was organized and acquired a portion of said property and a stock interest in the Western Coal & Coke Company; that the defendants elected to give and promised to plaintiff, in accordance with said contract, 1000 shares of the Independent Coal & Coke Company's stock, and the plaintiff heretofore demanded of and from the defendants the said 1000 shares of stock in the Independent Coal & Coke Company, but said defendants failed, neglected, and refused, and now do wholly fail, neglect, and refuse, to transfer or deliver to the plaintiff said 1000 shares of stock; that the plaintiff is informed and believes, and therefore states the fact to be, that said stock is now of the value of $ 1.50 per share." The amended complaint was offered, as counsel said, because it made the allegations conform to the proof already before the court, and no new evidence was offered in connection therewith. Respondents' counsel resisted appellant's application to file the amended complaint, but notwithstanding the allegations therein contained they still insisted on their motion for nonsuit for the reasons stated in the motion therefor. The court refused appellant's request to file the amended complaint, and sustained the motion for a nonsuit, and entered judgment dismissing the action. Appellant appeals from the judgment.
Appellant's counsel insist that the amendments offered by them were offered for the sole purpose of making the allegations conform to the...
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