Middleton v. General Water Works & Electric Corporation

• Decision Date: 29 October 1931
• Docket Number: 4 Div. 532.
• Citation: 224 Ala. 268,139 So. 273
• Court: Alabama Supreme Court
• Parties: MIDDLETON v. GENERAL WATER WORKS & ELECTRIC CORPORATION.

139 So. 273

224 Ala. 268

MIDDLETON v. GENERAL WATER WORKS & ELECTRIC CORPORATION.

4 Div. 532.

Supreme Court of Alabama

October 29, 1931

Rehearing Denied Nov. 27, 1931.

Further Rehearing Denied Feb. 4, 1932.

Appeal from Circuit Court, Covington County; Emmet S. Thigpen Judge.

Action of assumpsit by R. C. Middleton against the General Water Works & Electric Corporation. From a judgment for defendant plaintiff appeals.

Affirmed.

Stokely Scrivner, Dominick & Smith, and Wood & Hawkins, all of Birmingham, and E. O. Baldwin, of Andalusia, for appellant.

Rushton Crenshaw & Rushton, of Montgomery, and A. R. Powell, of Andalusia, for appellee.

BOULDIN J.

The case sought to be made out by plaintiff is well stated in special count 6. We set same out in full, as follows:

"Count Six: Plaintiff claims of the Defendant the sum of fifty thousand ($50,000.00) Dollars, damages for that heretofore, on to-wit, the month of May, 1929, the Defendant was a Corporation engaged in the operation of electric light plants, water systems, and similar utilities, and during said month the Defendant, for valuable consideration, agreed, engaged, requested and employed the Plaintiff to negotiate for it with the holders of the capital stock of the Little Cahaba Coal Company, a corporation, which was engaged in the operation of coal mines in Bibb County, Alabama, and to purchase said capital stock for the Defendant or its nominee; at a price satisfactory to said Defendant and said nominee; and the Defendant agreed with the Plaintiff that if an offer to sell said capital stock from said stock holders was secured by the Plaintiff at said satisfactory price the Defendant would purchase said capital stock either in its own name or furnish the money for its purchase in the name of its nominee and Defendant agreed to pay Plaintiff for his services in securing such offer the sum of five per cent. of the purchase price or to cause said five cent. to be paid by the seller and added to the purchase price.

"And Plaintiff avers that in pursuance of this agreement between the Plaintiff and the Defendant, he negotiated with the said stock holders of the Little Cahaba Coal Company, and secured an agreement from all of them to sell said capital stock to Defendant or its nominee at and for the sum of to-wit, one million, $1,000,000.00, dollars, which price the Defendant agreed was satisfactory to it and to its nominee and which the Defendant agreed to pay either in its own name or for its nominee.

"Plaintiff further avers that the said price of one million, $1,000,000.00, dollars for said capital stock included a commission of five per cent. to be paid to the Plaintiff for his services in negotiating the sale and purchase, all of which facts were known to the Defendant and agreed to by it, said commission of five per cent. having been included in said purchase price to be paid by the seller under the instructions of Defendant to the Plaintiff. And Plaintiff avers that with knowledge of these facts the Defendant agreed with the Plaintiff and said stock holders to purchase said stock at said price either in its own name or that of its nominee.

"Plaintiff avers that after he had performed all of the terms and conditions of said agreement on his part between the Plaintiff and the Defendant and after he negotiated with said stock holders for the sale of said capital stock in pursuance of his contract with the Defendant and at the request of the Defendant and after he had secured an agreement on the part of all of the stock holders of said capital stock to sell the same to the Defendant or its nominee at said price of one million ($1,000,000.00) dollars, and after the Defendant had agreed to purchase said stock upon said terms and conditions, with full knowledge that said stock holders were to pay Plaintiff out of the purchase price the sum of fifty thousand ($50,000.00) dollars for the sale of said stock, which payment by said stock holders was arranged at the request of the Defendant instead of payment being made direct from the Defendant to the Plaintiff, the Defendant thereafter failed and refused to purchase said stock either in its own name or that of its nominee, and failed and refused to furnish the money for its nominee to purchase said stock, although Defendant had engaged the Plaintiff to purchase said stock for it or its nominee and had agreed so to do, and although the Plaintiff had complied with all of the terms and conditions of said contract between the Plaintiff and the Defendant on his part.

"Plaintiff avers that as a proximate consequence of the said failure and refusal on the part of the Defendant the Plaintiff lost said sum of to-wit, fifty thousand dollars, agreed to be paid by said stock holders and Defendant has refused to pay to the Plaintiff the sum of fifty thousand dollars, hence this suit."

The gravamen of the count is breach of a contractual obligation to complete the purchase of the capital stock of Little Cahaba Coal Company, pay over the $1,000,000, out of which fund plaintiff was to receive his commission of $50,000.

As long as the transaction was in negotiation, only the defendant was free to abandon the project.

The relevancy and materiality of certain rulings on testimony assigned as error turn on their tendency, in connection with the whole evidence, to establish the vital inquiry: Was there an agreement upon the price of the stock, and an agreement to take the stock at that price?

General Water Works & Electric Corporation is a Delaware corporation, incorporated in May, 1928. Its corporate powers are plenary. Besides the power to own and operate waterworks and electric plants, as indicated by the corporate name, it has the charter power to own and operate public utilities generally; and general powers broad enough to include a coal mining business.

It is in the nature of a holding company, acquiring ownership by the purchase of the stock of subsidiaries, and usually operating in their several names.

During the first year of operations, down to the date of the transactions here involved, it had acquired control and ownership by stock transfers of numerous waterworks, electric power plants, and some other public utilities located in many states. Its operations were confined to the field of public utilities. It had not entered the field of coal mining. The main office was at Fort Worth, Tex.

Contracts had been entered into looking to the purchase of certain waterworks and electric plants in Southeast Alabama, and headquarters established at Andalusia.

Allan J. Smith, vice president, was, with the knowledge and approval of the corporate body, general manager of the corporation.

In May, 1929, the plaintiff, Mr. Middleton, interested Mr. Smith in a proposition to purchase the coal mine of Little Cahaba Coal Company, known as the Piper mine, in Bibb county, with a view to the erection of a steam electric plant on Little Cahaba river, near the mouth of the mine, to supply current for this and neighboring mines, and probably connecting up with the Southeast Alabama plants.

Mr. Smith sent to Birmingham, David Stewart, an engineer, with a letter to Mr. Middleton, showing Stewart was empowered to make a full investigation of all phases of the proposition, and report thereon.

Investigation and negotiations with the management of the coal company participated in by Mr. Smith, Mr. Stewart, and Mr. Middleton, proceeded concurrently for some weeks, during which time an option on the stock was taken, in the name of Mr. Middleton, and a written agreement with the stockholders of the coal company to pay Mr. Middleton 5 per cent. commissions, if, as, and when the money was paid over to them...