Smith Granite Co. v. Nuwall

• Decision Date: 22 September 1900
• Citation: 22 R.I. 220,47 A. 97
• Parties: SMITH GRANITE CO. et al. v. NUWALL et al.
• Court: Rhode Island Supreme Court

47 A. 97

22 R.I. 220

SMITH GRANITE CO. et al.

v. NUWALL et al.¹

Supreme Court of Rhode Island.

Sept. 22, 1900.²

Suit by the Smith Granite Company and others against Joseph Newall & Co. and others to rescind an agreement, cancel bonds, and discharge a mortgage. Decree in favor of defendants.

Walter P. Vincent, for plaintiffs. Augustus S. Miller, Thomas A. Carroll, and A. B. Crafts, for defendants.

DUBOIS, J. The complainants having purchased and absorbed the competing quarry and business of Joseph Newall & Co., respondents, and having made a partial payment therefor, by agreement with said Joseph Newall & Co. executed a trust mortgage deed of all of their property, including that covered by such purchase, to the Industrial Trust Company, respondent, to secure their bonds to the amount of $200,000, and placed said bonds in the hands of S. W. Kilvert, respondent, for sale at not less than par, subject to the terms of the following vote: "Voted that the $200,000 worth of bonds to be issued by this corporation be pledged in the hands of S. W. Kilvert, selling agent, as security for $90,000 due Joseph Newall & Co., and that S. W. Kilvert be, and hereby is, directed and authorized to pay to said Joseph Newall & Co. the first $90,000 realized from the sale of said bonds, said pledge being fully discharged and released upon payment thereof." Said S. W. Kilvert made diligent attempts, but was unable to sell said bonds at par, and said complainants, finding it to be impossible to thus secure the amount necessary to pay the balance due to said Joseph Newall & Co., offered to return to them the property so purchased, and to replace matters as nearly as possible in the same condition as they had been prior to the execution of the agreement between said parties relative to such sale and purchase, which offers were declined by said Joseph Newall & Co., who claimed to be entitled to a lien upon said $200,000 worth of bonds so secured by said mortgage. Whereupon the complainants sought the aid of the court, and urge that the agreement under which said purchase was made ought to be rescinded, because the same has not been, and cannot be, performed in its essential and material parts, and because its performance is impossible; that, because it is impossible to sell said bonds at par, it is also impossible to carry out the agreements dependent upon such sale; and that, therefore, such bonds are no longer necessary or desirable, and ought to be canceled, and that the...