Stevens v. Hertzler

• Decision Date: 30 January 1896
• Citation: 19 So. 838,109 Ala. 423
• Parties: STEVENS v. HERTZLER. [1]
• Court: Alabama Supreme Court

19 So. 838

109 Ala. 423

STEVENS v. HERTZLER. ^[1]

Supreme Court of Alabama

January 30, 1896

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Action by John Hertzler, Jr., against James R. Stevens. There was a judgment for plaintiff, and defendant appeals. Affirmed.

The amended complaint, on which the cause was tried, and which sets out the claim of the plaintiff, was as follows "The plaintiff claims of the defendant the sum of $1,270.08, with interest thereon from the 16th day of January, 1894, due from the defendant to the plaintiff under the following state of facts; On or about the 8th day of January, 1894, the plaintiff, with others therein named executed and delivered to the defendant a contract in writing in words and figures, as follows, to wit: 'State of Alabama, Madison County. Know all men by these presents that Whereas, we, Henry P. Turner, John Hertzler, Jr., James R Stevens, Jr., William Burritt, and H. & C. L. Toney, a partnership composed of Harris Toney and Charles L. Toney our respective and separate holdings of the stock of the Hagey Hospital Association of Texas, a corporation duly organized and incorporated under the laws of the state of Texas; and whereas we each own forty-nine (49) shares of said stock, of the par value of one hundred dollars each: Now therefore, this instrument witnesseth that for and in consideration of the sum of ten dollars to us in hand paid by James R. Stevens, of the county and state aforesaid, and for divers other and valuable considerations, we do hereby covenant and agree with, and obligate ourselves to the said James R. Stevens, his heirs and assigns, that we will at any time within three months from the date of this agreement sell, transfer, and deliver to the said James R. Stevens our respective shares of the stock in the said the Hagey Hospital Association of Texas, a corporation duly organized and incorporated under the laws of the state of Texas as aforesaid, at and for the agreed sum of twenty-five and 92/100 dollars per share. In the event the said James R. Stevens should not avail himself of the option within the time specified, then these presents are to be void and all parties hereto are to be discharged from any liability on account thereof. Given under our hands and seals this 8th day of Jan., 1894. H. P. Turner. [Seal.] Jno. Hertzler, Jr. [Seal.] J. R. Stevens, Jr. [Seal.] H. and C. L. Toney, for 25 shares. [Seal.] H. and C. L. Toney, for 24, additional shares, if satisfactory to W. F. Baldrodge. [Seal.] W. H. Burritt. [Seal.]' Thereafter, and on or about the 16th day of January, 1894, the plaintiff, under the contract above set out, sold and delivered to the defendant forty-nine shares of the capital stock mentioned in the contract above set out, and thereupon the defendant executed and delivered to the plaintiff an instrument in writing in words and figures as follows: 'Huntsville, Ala., Jan'y 16th, 1894. Received of John Hagey Hospital Association of Texas, to be paid for as per terms of a contract duly signed by said Hertzler, Jr., dated January the 8th, 1894, or the said forty-nine shares of stock to be returned by me to said Hertzler within the time specified in said contract. J. R. Stevens. Witness: Erskine Mastin.' Said defendant wholly failed to return to the plaintiff, within three months from the 8th day of January, 1894, or within three months from the 16th day of January, 1894, said forty-nine shares of said stock, or any part thereof; and has wholly failed and refused to pay to the plaintiff the agreed price of said stock, to wit, the sum of twenty-five and 92/100 dollars per share; and said sum, together with the interest thereon, is still due and owing by the defendant to the plaintiff." The defendant demurred to the amended complaint, on the ground that it shows on its face that there was no contract of sale made by the plaintiff to the defendant, but that the plaintiff only gave the defendant the privilege for three months of becoming the purchaser of said stock at the price of $1,270. This demurrer was overruled, and the defendant pleaded-First, the general issue; second, "that he did no contract or assume to pay the plaintiff the sum of $1,270.08." By the remaining pleas the defendant pleaded that the stock of the Hagey Hospital Association mentioned in the complaint as belonging to the plaintiff was not delivered to the defendant as the purchaser of said stock, or entered into any agreement of purchase thereof, but that the defendant received the stock under bailment, as agent of the plaintiff to sell the same under the terms and within the time prescribed in the contract bearing date January 8, 1894. To the second plea the plaintiff demurred on the grounds: First, that said plea does not state facts constituting a bar to the entire demand alleged in the complaint; second, said plea does not show that plaintiff was not entitled to recover against the defendant on the demand stated in the complaint; third, said plea only puts in issue the amount of plaintiff's demand. On the trial the plaintiff offered in evidence the contract and receipt as copied in the complaint, and as a witness in his own behalf testified that the 49 shares of stock in the Hagey Hospital Association of Texas were not returned to him by James R. Stevens within three months from January 8, 1894, nor within three months from January 16, 1894, and that the defendant, Stevens, had never paid plaintiff for said stock. The plaintiff then rested his case. The defendant, as a witness in his own behalf, testified that the contract dated January 8, 1894, was prepared by an attorney, and the receipt was prepared by the defendant, at his bank in Huntsville, on the day it bore date, and was signed in the presence of Hertzler and Erskine Mastin; that he received the stock from Hertzler at the time the receipt was signed by him, and carried it to Texas, and made an effort to sell the stock, but did not succeed; that, after he returned from Texas, he mentioned the matter to the plaintiff, but did not offer to return the stock, but simply said that he was unable to do anything with the stock while in Texas, but had interested some brokers in it, and that they would report to him. The defendant further testified that the plaintiff did not object to this arrangement. The defendant was then asked, as a witness, many questions, for the purpose of showing that the receipt was given for the stock delivered to the defendant by the plaintiff, in order that the defendant might take the stock with him to Texas for the purpose of trying to negotiate a sale of it, so that he might be prepared in the event of a sale to deliver the stock at once, and not be delayed in writing back for it; and also that the parties, in the event a sale was negotiated, would not have time to change their minds before its delivery. This testimony was sought to be elicited from several witnesses, but, upon the plaintiff objecting to each of the questions tending to elicit such testimony, the court sustained the objection, and to each of these rulings the defendant separately excepted. Several of the other parties to the contract of January 8, 1894, were examined as witnesses for the defendants, and...