Mitchell v. Wedderburn

• Citation: 11 A. 760,68 Md. 139
• Parties: MITCHELL ET UX v. WEDDERBURN ET UX.
• Decision Date: 16 December 1887
• Court: Court of Appeals of Maryland

11 A. 760

68 Md. 139

MITCHELL ET UX v. WEDDERBURN ET UX.

Court of Appeals of Maryland

December 16, 1887

Appeal from superior court of Baltimore city.

Cecil Wallace Mitchell and Lydia P. Mitchell, plaintiffs, sued Alexander J. Wedderburn and Jane Sarah Wedderburn defendants, for breach of contract; judgment for defendants and plaintiffs appealed.

W Reynolds, for appellants.

John T. Mason, for appellees.

ROBINSON J.

This is an action to recover damages for the breach of a contract in writing, by the terms of which the plaintiff Mrs. Mitchell alleges she sold 260 shares of stock of the Ceres Manufacturing Company to the defendant Mrs. Wedderburn for the sum of $18,000. The stock was to be paid for in "The Ceres Superphosphate," a fertilizer manufactured by the company, at a valuation of $22 per ton; not more than 400 tons to be delivered to Mrs. Mitchell in any one year. The sixth clause provides that, upon the payment of the whole purchase money, the stock was to be "transferred to Mrs. Wedderburn, to be retired by the Ceres Manufacturing Company in accordance with law;" and, further, that "all the terms of this contract are hereby declared and intended to be subject to the rights of the creditors of the Ceres Manufacturing Company, of Baltimore city, and of no effect to alter the status of the parties hereto with respect to said creditors as regards the respective interest of said parties in the assets of said company." To this action the defendants pleaded that the contract sued on, as appears from the terms thereof, was part of a plan proposed between the plaintiff Mrs. Mitchell and the defendant Mrs. Wedderburn,--they being the holders of the majority of the stock of the Ceres Manufacturing Company,--by which Mrs. Mitchell was to sell her stock to the company through Mrs. Wedderburn, and, when paid for, to be retired for the benefit of the remaining stockholders; all parties to the transaction believing, at the time, that the stock could be paid for in fertilizers belonging to the company without impairing the rights or interests of its creditors, but that the contract was made upon the express condition, as appears from its terms, that if it should turn out that the delivery of the fertilizer in the payment of stock impaired in any manner the rights of the creditors of the company, then the contract was to be void and of no effect. The plea further alleges that, after a partial delivery of the fertilizers under the contract, it became plain and apparent to all the parties thereto that the further delivery could not be made in justice to the rights of creditors, and thereupon the contract was, with the consent of the plaintiff, abandoned. To this plea, the plaintiffs file a general demurrer, and, as special demurrers for defects in matter of form are no longer allowed by the Code, the only question under the general demurrer is whether this plea sets forth a substantial defense to the action.

Now, if we reject all unnecessary verbiage and all unnecessary matter as mere surplusage, the defense set up by the plea is that the contract...