Moody v. Crane

• Decision Date: 01 July 1921
• Citation: 34 Idaho 103,199 P. 652
• Parties: H. L. MOODY, Respondent, v. FOSTER CRANE, Appellant
• Court: Idaho Supreme Court

199 P. 652

34 Idaho 103

H. L. MOODY, Respondent, v. FOSTER CRANE, Appellant

Supreme Court of Idaho

July 1, 1921

APPEAL AND ERROR-REPORTER'S TRANSCRIPT-EXTENSION OF TIME TO PREPARE SAME-DUTY OF REPORTER-WHEN EQUITY WILL NOT DECREE SPECIFIC PERFORMANCE-IF PROPER PARTIES ARE NOT BEFORE COURT-WHERE DECREE CANNOT BE ENFORCED BY ORDINARY PROCESS OR WHEN CONTRACT LACKS MUTUALITY.

1. A reporter's transcript prepared under C. S., sec. 6886 will not be stricken from the record on appeal because it was not prepared, lodged, served and settled within the time allowed, where appellant has obtained and served the proper order and paid the fees, and the delay is not due to any negligence on his part.

2. Under C. S., sec. 6886, it is the duty of the court reporter where he has been unable to prepare a transcript within the time allowed by the trial court's order, to have such time extended before its expiration, but his failure to do so will not be sufficient reason for striking such transcript from the record on appeal, where appellant has not contributed to such delay.

3. A court of chancery will not enter a decree of specific performance unless all of the proper parties are before the court.

4. Equity is without jurisdiction to decree specific performance of an executory contract where by the ordinary processes of the court it cannot be enforced.

5. Equity will not decree specific performance of a contract unless there is mutuality of obligation and remedy, and where a contract cannot be enforced against one of the parties such party cannot enforce it specifically against the other.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. James R. Bothwell, Judge.

Action to compel specific performance of a contract for the sale of stock. From judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions to dismiss.

Reversed and remanded, with instructions. Costs awarded to appellant.

W. G. Bissell, for Appellant.

Under the pleadings, as well as the general law relating to suits in specific performance, it was necessary for the plaintiff, in order to establish his case, to prove that the defendant was the owner of the stock in question, and therefore could specifically perform. (Kennedy v. Hazelton, 128 U.S. 667, 9 S.Ct. 202, 32 L.Ed. 576; Lane v. Crossman, 58 Ill.App. 386; Chartier v. Marshall, 51 N.H. 400; Clifton v. Charles, 53 Tex. Civ. 448, 116 S.W. 120; Lamb v. General Film Co., 130 La. 1026, 58 So. 867; Blair v. Lowrey (Tex. Civ.), 164 S.W. 14; Morgan v. Bell, 3 Wash. 554, 28 P. 925, 16 L. R. A. 614; Morrisey v. Strom, 57 Wash. 487, 107 P. 191.)

"Before specific performance to take or deliver corporate stock may be decreed it is necessary that the agreement should not involve any breach of trust, nor include the performance by either party of obligations, the performance of which equity cannot practically enforce.

"Unless equity can decree specific performance of the whole contract, it will not interfere to enforce any part of it, and specific performance will not be enforced unless the remedy is mutual." (Deitz v. Stephenson, 51 Ore. 596, 95 P. 803; Ross v. Union Pacific Ry. Co., Woolw. 26, F. Cas. No. 12,080; Pullman Palace Car Co. v. Texas & P. Ry. Co., 11 F. 625, 4 Wood, 317; Beard v. Linthicum, 1 Md. Ch. 345.)

"Specific performance of a contract will not be enforced against one party, if it cannot be enforced against the other." ( Whiteaker v. Vanschoiack, 5 Ore. 113.)

"Specific performance of a contract can only be decreed where the remedy is mutual." (2 Beach, Mod. Eq. Jur. 585; Pomeroy, Spec. Performance, secs. 162, 163.)

Sweeley & Sweeley, for Respondent.

As the time limit fixed by the trial judge for the preparation of the transcript had expired, the subsequent orders were without effect, and the trial judge had no jurisdiction of the matter or power to settle or allow the transcript. ( Coon v. Sommercamp, 26 Idaho 776, 146 P. 728; Stout v. Cunningham, 29 Idaho 809, 162 P. 928; Boise-Payette Lumber Co. v. McCarthy, 31 Idaho 305, 170 P. 920; Hansen v. Boise-Payette Lumber Co., 31 Idaho 600, 174 P. 703; Iowa State Savings Bank v. Twomey, 31 Idaho 683, 175 P. 812; Robinson v. St. Maries Lumber Co., 32 Idaho 651, 186 P. 923; Bergh v. Pennington, 33 Idaho 198, 191 P. 204.)

"Equity may compel specific performance of a contract to sell corporate stock, where the value of the stock is not easily ascertainable or where the stock is not obtainable elsewhere or where there is some reasonable cause for the buyer requiring a delivery of the stock contracted for." ( Deitz v. Stephenson, 51 Ore. 596, 95 P. 803; Krouse v. Woodward, 110 Cal. 638, 42 P. 1085; Turley v. Thomas, 31 Nev. 181, 135 Am. St. 667, 101 P. 568; Gilfallan v. Gilfallan, 168 Cal. 23, Ann. Cas. 1915D, 784, and cases cited in notes 141 P. 623.)

LEE, J. McCarthy, Dunn, JJ., RICE, C. J., and BUDGE, J., concurring.

OPINION

LEE, J.

This action was commenced by respondent Moody against appellant Crane for specific performance, to compel the conveyance of 1,150 shares of the capital stock of the Morton Realty Company, a domestic corporation, and 20,000 shares of the capital stock of the Buckeye Ranch Company, also a domestic corporation, according to the terms of a contract entered into between the parties on March 18, 1916, which, with its modifications and amendments, is pleaded haec verba in the complaint. Appellant represented in this contract that he owned 1,150 shares of the capital stock of the Morton Realty Company, which was capitalized for 2,000 shares, and that its property consisted of farm property known as the Buckeye Ranch, situate near Hagerman, in Lincoln County, and certain personal property in the way of farm implements, and was free from indebtedness except for a mortgage of $ 50,000, which he owned, but which was being foreclosed. Respondent was to take all risk of the foreclosure proceedings, and appellant agreed to pay the costs and expenses of such litigation up to the entry of the final decree. Following the execution of this agreement, additional conditions were added thereto, whereby respondent guaranteed to appellant the payment of a certain balance due on a contract for the sale of certain real estate in Umatilla county, Oregon, which was to be taken by appellant as part payment of the $ 31,000 which respondent was to pay for said 1,150 shares of corporate stock. In addition to this sale contract for the corporate stock, appellant attached an order thereto, directing the Boise City National Bank to deliver all papers pertaining to the transaction to respondent or order, upon payment to it, for the use and benefit of appellant, of $ 21,760.75, evidenced by ten interest-bearing notes, aggregating that amount. These several agreements covering this transaction were drawn by appellant's attorney, who with the consent of both parties retained the original papers for the purpose of depositing all documents pertaining to the transaction with the Boise City National Bank, after respondent had executed a conveyance of his interest in the Oregon property and furnished an abstract showing merchantable title thereto, to the satisfaction of said attorney.

Appellant's answer admits the execution of said sale agreement, but by way of legal conclusion denies that he sold respondent said 1,150 shares of the stock of the Morton Realty Company or 20,000 shares of the stock of the Buckeye Ranch Company, and alleges that he was not the owner of the stock in question at the time he entered into the agreement to sell the same, and also denies that respondent executed and delivered to him nine negotiable promissory notes in the sum of $ 20,000. That is, while the answer admits the execution of all of the instruments set out by respondent's amended complaint, it then attempts to specifically deny all of the material allegations of said complaint, except the signing of said sale agreement, and affirmatively pleads that at the time appellant signed the same he owned only 855 shares of said Morton Realty Company's corporate stock; that prior to making said agreement he had fully informed respondent that all of said stock mentioned in said sale agreement in excess of 855 shares was involved in litigation with third parties; that prior to completing said sale agreement with respondent such litigation had resulted adversely to his claim, and that he was not able to secure more than 835 shares; and therefore by its terms, conditions and nature this was not such a contract as the court could specifically enforce.

Upon issues thus joined the cause was tried to the court. Respondent offered his proof and rested, and thereupon appellant moved for a nonsuit, on the ground that respondent's evidence showed that he was not entitled to specific performance, because respondent was bound to both allege and prove appellant's ownership of a majority of the capital stock of said corporation, and also for the reason that respondent had not complied with the conditions of said agreement on his part to be kept and performed. The motion was denied, and appellant stood on the same and failed to offer any evidence in support of his answer. Findings, conclusions and decree were entered, awarding specific performance, from which decision this appeal is taken.

Respondent moved to strike the reporter's transcript from the record on appeal, on the ground that said reporter's transcript had not been prepared, lodged and served, settled and filed in the manner and within the time required by law and the rules of this court. This appeal was perfected August 27 1917, and on the same day the trial court ordered the reporter to prepare his transcript, giving him forty days within which to do so; this order was...