Mitchell v. Taylor

• Decision Date: 20 July 1895
• Citation: 27 Or. 377,41 P. 119
• Parties: MITCHELL v. TAYLOR.
• Court: Oregon Supreme Court

41 P. 119

27 Or. 377

MITCHELL v. TAYLOR.

Supreme Court of Oregon

July 20, 1895

Appeal from circuit court, Wasco county; W.L. Bradshaw, Judge.

Action by T.G. Mitchell against O.D. Taylor to compel defendant under his contract to assume the purchase of stock. From a judgment of nonsuit, plaintiff appeals. Reversed.

The facts necessary for an understanding of this case are substantially as follows: On March 24, 1892, the defendant being the president of the Columbia River Fruit Company, and acting in its behalf, induced one D.B. Cornell to enter into a contract with the company, containing, among other things the following stipulations: "That said party of the first part [the company] has this day sold to the said party of the second part [D.B. Cornell] ten shares of the capital stock of said company for four hundred dollars per share being the face value thereof, and amounting to four thousand dollars, and said party of the second part has agreed and does hereby agree to purchase and take said number of shares of the capital stock of said party of the first part, and amounting to four thousand dollars, and to pay said sum therefor, in installments, as follows, to wit, one hundred dollars to be paid at the beginning of this contract for each share of stock hereby subscribed and taken by said party of the second part, and one hundred dollars annually thereafter for each share so subscribed by him until the full amount subscribed is paid. Now, therefore, in consideration of the premises and the subscribing of said stock, and payment therefor by said party of the second part, it is hereby mutually understood and agreed that, when said shares of stock shall have been fully paid for as hereinbefore set forth, then the party of the first part will issue to the party of the second part the number of shares of paid-up stock subscribed and taken by him in this contract." As an inducement to enter into this contract with the company the defendant made, executed, and delivered to Cornell the following agreement: "This writing witnesseth that I O.D. Taylor, of The Dalles, Oregon, in consideration of the purchase by D.B. Cornell of Saginaw, Michigan (E.S.) of ten shares of stock in the Columbia River Fruit Company, paying therefor one thousand dollars in cash, and agreeing to pay one thousand dollars annually until the par value is paid, do hereby agree to repurchase said stock if said D.B. Cornell or his legal representatives so desire, at any of the stated dates of payment, and to pay therefor the sums actually paid in cash by D.B. Cornell, with eight per centum annual interest on said sum so paid. O.D. Taylor." Cornell paid the first installment of $1,000 to the company at the time of entering into the agreement with it. The complaint, after reciting these facts, further alleges that, on the 1st day of March, 1893, Cornell sold, assigned, and transferred to plaintiff all his right, title, and interest in and to said stock and said agreement, and the plaintiff is now the owner and holder thereof; that thereafter, and on March 24, 1893, plaintiff notified defendant of his desire to have defendant repurchase said stock, as by said agreement required, but that defendant refused to comply therewith; and that thereafter, on March 24, 1894, plaintiff duly sold and transferred in writing to the defendant said stock and the agreement of said Cornell to purchase the same, and delivered the same to defendant, and demanded the payment of $1,000, being the sum paid by plaintiff on the agreement with the company, together with 8 per cent. per annum from March 24, 1892; but that defendant refused to comply with his said request to repurchase the stock or to pay the $1,000, with interest, or any part thereof; and that plaintiff has fully performed on his part; that plaintiff holds said stock and agreement for defendant at his disposal, and now brings the same into court with a proper transfer to defendant. The prayer is for $1,000 and interest at 8 per cent. per annum from March 24, 1892.

The answer puts in issue the material allegations of the complaint, except that it is admitted that the agreement between Cornell and defendant was entered into as alleged. Thereafter, on November 10, 1894, plaintiff filed a supplemental complaint, wherein it is alleged "that heretofore, and on or about the _____ day of July, 1894, and since the commencement of this action, the said agreement mentioned in plaintiff's complaint, and entered into by and between the Columbia River Fruit Company and D.B. Cornell, and wherein said Cornell agreed to purchase, and said company to sell, certain stock of said company, as alleged in the complaint, being in the hands of the county clerk of this county, as brought into court in this cause, as set forth and shown in the complaint herein, the said defendant accepted and received the same, with the transfers thereof to him, and has ever since and still does keep and retain the same, but neglects and refuses to pay the plaintiff the said sum of $1,000, as agreed, and which the said defendant promised and agreed to pay in his said written agreement mentioned in the complaint, or any part thereof." The answer to the supplemental complaint admits the taking of these documents from the clerk's office by defendant, but alleges that they were handed to him by the clerk of the court or his deputy, and that he took and received them without knowledge of what they were; that, after keeping them some time, he discovered that they purported to be the agreement between Cornell and the company and a transfer of the same from Mitchell to himself, and that thereupon he immediately returned them to the clerk; that he never accepted them, but only received them in ignorance of what they were. This new matter is denied by the reply. Under these pleadings, the cause was tried before a jury. At the trial, plaintiff offered, and the court admitted, in evidence the two agreements aforesaid; an assignment thereof by Cornell to plaintiff; a power of attorney from plaintiff to H.A. Hogue, authorizing him to demand, receive, and collect the amount owing on the contracts mentioned in the foregoing assignment, and to make such transfer, assignment, or satisfaction thereof as may be necessary; "and an assignment by plaintiff to defendant of all his right, title, and interest" in and to a certain contract for purchase by D.B. Cornell, of Saginaw, East Side, Michigan, of 10 shares of stock in the Columbia River Fruit Company of The Dalles, Or., which said contract was executed March 24, 1892, "and assigned to plaintiff by Cornell March 1, 1894." There was indorsed on this assignment, in pencil: "Left for O.D. Taylor by W.H. Wilson, May 21, 1894."

A.J Rorick, a witness for plaintiff, testified, in substance, that, at the request of H.A. Hogue, and acting on behalf of the plaintiff, he went to the room of defendant at the Hotel Perkins in Portland, on the 24th of March, 1894, and found defendant there, and with him ex-Attorney General Geo. H. Williams, and, in giving his version of the interview, said: "I stated to Mr. Taylor that I was there to complete a transfer of some stock and an agreement that he had made, and that I had the papers with me, and this was one of the days mentioned for the transfer, and asked him if he desired to make it, or was ready to do so. Mr. Williams stated that he was Mr. Taylor's attorney, and asked me to let him examine the papers, and said he would like to consult with Mr. Taylor, and that he would return his answer to me later, and we fixed upon 1 o'clock as the hour. I returned there at 1 o'clock, and Mr. Williams *** said, in a jocose sort of way, that they had their war paint on, and that this was a part of some other matters, and, in the language of the poet, he would meet us at Philippi, and he turned over the papers to me, and I left." Judge Williams said they were not ready to pay the $1,000. And, in answer to a question, the witness continued: "I was there, under the contract, to ask them if they were ready to pay the money, as agreed,--as named in the agreement. I stated that I was there as the agent of Mitchell, *** prepared to act for him, and showed these papers [four in number]. Then Judge Williams asked me to turn them over to him. When Mr. Taylor first asked me for them, I said I wanted to know, of course, whether the papers would be returned to me or not, if he did not carry out the agreement. Judge Williams then said that he would pledge himself, as Mr. Taylor's attorney, to see that the papers were returned. I did not expect to let him have them and get no money,--of course not. I merely left them with Judge Williams to obtain their answer, whether they would pay over the one thousand dollars. Q. You did not intend that the papers should go out of your possession permanently unless you got the money? A. No, sir. *** I intended and did demand the money, and stated that I was there to deliver the papers, *** and stated my readiness to turn them over to him." A.G. Johnson testified, in substance, that he had been deputy clerk since the 1st of July, 1894; that, some time after he became deputy, Taylor came into the office and inquired for some papers in another matter in which he was interested; and that, while hunting for the papers, Taylor stepped out of the office. Continuing his testimony, and referring to the Cornell papers, the witness further said: "I went to the safe, and found these papers. I took them out of the safe, and went to the door and spoke to him. 'Here,' I said, 'I see some papers that seem to have been left for...