Roller v. Weigle

• Decision Date: 03 November 1919
• Docket Number: 3250.
• Parties: ROLLER v. WEIGLE et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

261 F. 250

ROLLER v. WEIGLE et al.

No. 3250.

United States Court of Appeals, District of Columbia.

November 3, 1919

Submitted October 10, 1919.

Appeal from the Supreme Court of the District of Columbia.

E. A Jones, of Washington, D.C., for appellant.

Paul E Lesh, of Washington, D.C. Wilson, Huidekoper & Lesh, of Washington, D.C., on the brief), for appellees.

SMYTH Chief Justice.

This is an appeal from a decree of the lower court, dismissing a bill filed by the appellant for a specific performance of a contract between himself, Weigle, and one Schumacher (who is not a party to the suit), for an accounting, and other relief. The material parts of the contract are: That the owners of the capital stock of the appellee corporation offered to sell the same; that the parties to the contract agreed amongst themselves that they would purchase it; that Weigle was to receive 50 shares, Roller 40 shares, and Schumacher 10 shares of the stock; that Weigle, if necessary was to lend to Roller and Schumacher the money required to pay for their respective shares; that Roller, as managing director of the corporation, was to receive a weekly drawing account of $50, and Weigle, as supervising director, was to receive $25 a week; that the parties to the contract were to be directors of the corporation; that Weigle was to be president, Schumacher vice president, and Roller secretary-treasurer; and that the salary of each was to be fixed at each meeting of the corporation before the dividends should be declared.

The bill alleges that Weigle refused to be bound by the contract, and had secretly acquired, either solely or jointly with others, the control of the capital stock, and that the appellant is ready and willing to perform his part of the agreement. The bill prays:

'That a decree be passed herein directing the defendant G. L. Huske Optical Company to transfer on the books of the defendant company, out of the stock standing in the name of the defendant William E. Weigle, or otherwise held by him, forty (40) shares thereof to the plaintiff, the said forty (40) shares, when so transferred, to be held by the said William E. Weigle in accordance with the terms of said agreement, * * * as collateral security for the repayment to the said William E. Weigle out of the dividends accruing on said stock of the amount or sum of money paid by the said William E. Weigle for said forty (40) shares, and in the decree so passed the plaintiff be declared to be the owner of said forty (40) shares of stock as of the date of the acquisition thereof by the said William E. Weigle.'

It further prays that Weigle be required to account to the plaintiff for all damages sustained by him by reason of having been deprived of the office and salary secured to him by the terms of the agreement, and that a money decree for the amount thereof be entered.

The contract does not specifically provide that Roller was to be managing director of the corporation, but it is clear from its terms that it was the intention of the parties that he should be, since it says that 'as managing director of the corporation' he 'shall receive a weekly drawing account of $50. ' He was also to be secretary-treasurer and was to receive a salary which was to be fixed at each meeting of the corporation before the dividends should be declared. According to the allegations of the bill, he was an experienced and successful optometrist. It does not appear that either of the other parties to the contract had any experience in that line. He, then, was to be the practical man in charge of the business, and his performance of the duty of managing director, as well as that of secretary-treasurer, was manifestly an important consideration for the contract made by Weigle. It is part of the contract, and cannot be separated from the rest without changing the agreement in an essential particular, and equity 'will not interfere to enforce part of a contract, unless that part is clearly severable from the remainder. ' Marble Co. v. Ripley, 10 Wall. 339, 359 (19 L.Ed. 955); Pantages v. Grauman et al., 191 F. 317, 323, 112 C.C.A. 61. In...