McCormick v. Badham

• Decision Date: 17 January 1918
• Docket Number: 6 Div. 673
• Citation: 77 So. 736,201 Ala. 210
• Parties: McCORMICK v. BADHAM.
• Court: Alabama Supreme Court

77 So. 736

201 Ala. 210

McCORMICK v. BADHAM.

6 Div. 673

Supreme Court of Alabama

January 17, 1918

Rehearing Denied Feb. 7, 1918

Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.

Assumpsit by A.H. McCormick against Henry L. Badham. Judgment for defendant, and plaintiff appeals. Affirmed.

The twelfth count alleges a written contract as set out in a former report of this case in 191 Ala. 339, 67 So. 609, and avers that by said contract defendant agreed to sell plaintiff 45 shares of the stock of said company at the par value and price of $100 each, to be paid as therein specified, and that at the time of the execution of the foregoing contract defendant was the owner of 500 shares of the par value of $100 each of the capital stock of the Dorechester Lumber Company, and defendant's brother, one V.C. Badham, owned the remaining stock of said company consisting of 500 shares, and the said Dorechester Lumber Company had entered into a contract with plaintiff for services to be rendered by plaintiff to said company for a term of, to wit, three years, which was the contract with said company referred to in contract with defendant, and in order to induce plaintiff to enter into the services of the company defendant entered into said contract with plaintiff above set out, and plaintiff further avers that in the month of February, 1907, defendant, who then held in his possession the certificates for the said 45 shares of stock which he contracted to sell to plaintiff, informed plaintiff that he was then on trade with his said brother, V.C. Badham, to sell to him 500 shares held by him in said company, including the 45 shares sold to plaintiff at and for the price of $100,000 which was at the price of $200 per share, and defendant then asked and obtained plaintiff's consent to include the said 45 shares which defendant had sold to plaintiff in the said sale, and in consideration thereof defendant agreed with plaintiff to account to the plaintiff or to settle with plaintiff for the price of the said stock, and plaintiff avers that defendant did thereafter, and during the year 1907, close said trade for the sale of 500 shares of said stock in the said company to the said V.C. Badham at and for the price of $200 per share, and defendant was paid a large part of the purchase money therefor, and defendant failed and refused for a long time before the bringing of this suit, and still fails and refuses, to account to plaintiff and settle with plaintiff for the price of said 45 shares. Plaintiff avers that he fully performed his part of the contract with the Dorechester Lumber Company referred to in this contract and remained with and in the service of said company for the full term of said contract, to wit, three years, and performed all the duties devolving upon him thereunder.

James A. Mitchell, of Birmingham, for appellant.

Percy Benners & Burr, of Birmingham, for appellee.

ANDERSON C.J.

This is the second appeal in this cause. The first report of same will be found in 191 Ala. 339, 67 So. 609. The second trial seems to have proceeded upon count 12 of the complaint and the common counts, upon the theory of a subsequent agreement by the defendant to make a satisfactory settlement with the plaintiff for his $4,500 worth of stock if the defendant included it in the sale to V.C. Badham together with his own stock. There was judgment for the plaintiff, and the damage assessed was upon the evident basis that the stock had either been sold for or was worth $200 per share; the jury giving the plaintiff the difference between the par value, what the plaintiff owed the defendant for same, and the said sum of $200 per share,...