Tewksbury v. Noyes

• Decision Date: 02 December 1941
• Citation: 23 A.2d 204
• Parties: TEWKSBURY v. NOYES.
• Court: Maine Supreme Court

23 A.2d 204

TEWKSBURY

v. NOYES.

Supreme Judicial Court of Maine.

Dec. 2, 1941.

Appeal from Superior Court, Hancock County.

Bill in equity by Lewis G. Tewksbury against B. Lake Noyes for the specific performance of an alleged contract for sale of 50 per cent. of the capital stock of an opera company. From a decree sustaining the bill, defendant appeals.

Appeal sustained and case remanded.

Argued before STURGIS, C. J., and THAXTER, HUDSON, MANSER, WORSTER, and MURCHIE, JJ.

Abraham M. Rudman and Abraham Stern, both of Bangor, for plaintiff.

William B. Blaisdell and Peter Briola, both of Ellsworth, for defendant.

THAXTER, Justice.

This bill in equity for specific performance of an alleged contract was heard by a single justice who entered a decree sustaining the bill and granting the relief prayed for. The defendant filed an appeal which is now before us.

The substance of the bill is that the defendant acting through his son, G. Howard Noyes, as agent, entered into an oral contract with the plaintiff in October, 1927, under the terms of which the defendant agreed to sell to the plaintiff fifty percent of the capital stock of the Stonington Opera Company then represented by forty shares for a price of $4,000; that payments were to be made in installments "over such a period of time as the plaintiff might require to pay said price in full," and interest was to be paid at six percent; that April 1, 1928 one half the dividends on the stock were paid to the plaintiff in part by a check and in part by a credit on account of the purchase price; that on October 9, 1928, the plaintiff paid to the defendant, through his agent, G. H. Noyes, $900 for which he received a receipt, the notation on which read "to date on a/c purchase half interest in Stonington Opera Company. Bal. due $3,100.00"; that on January 18, 1929, the plaintiff paid $100 on account of interest, receiving a receipt from G. H. Noyes as agent for the defendant, the notation on which read "on a/c Opera Co. interests, making $1,000.00 pd on $4,000.00 half interest. Interest paid to date"; that on February 10, 1932, there was a further payment of $540 for which a receipt was given by the agent with the notation, "in full for interest on balance due for one-half interest up to Jany. 1, 1932. a/c now stands with $3,000.00 due on principal"; that on June 4, 1935, there was a further payment by check of $900, the notation on which reads, "For interest and payment on principal on a/c purchase of half interest in stock of Stonington Opera Company" which check was endorsed "B. L. Noyes by G. H. Noyes." The bill then goes on to allege that the stock of the Stonington Opera Company was closely held and not listed and that the plaintiff has asked for the delivery of the stock in accordance with the agreement on payment of the balance due but that the defendant has refused to deliver the same.

The answer contains a plea setting up as a defense, firstly laches, and secondly the statute of frauds, the laches being based on the fact that the son, G. Howard Noyes, died in 1939, and due to that and to the delay by the plaintiff in bringing his bill, the defendant has been placed at a disadvantage in presenting his case. The answer to the merits denies the allegations of the bill except that the defendant refused to transfer the stock, such refusal being justified on the ground that he never made the agreement with the plaintiff as alleged and that he never authorized any person or persons to make it.

The sitting justice found that the allegations of the bill were true. He specifically called attention to the payment of one half of the dividends to the plaintiff and to the payments which were made to the defendant on account of the purchase price; and it is apparent that in the light of the documentary proof and the defendant's own testimony he took very little stock in the claim of the defendant that he knew nothing about the agreement until after his son had died. It appeared that certain additional stock had been issued since the original agreement had been made and the decree, which overruled the plea, ordered the defendant on the payment of the balance due which was found to be $3,611.96, to turn over to the plaintiff 48 1/2 shares, being one half the total amount of stock found to be issued and outstanding.

On the issue raised by the denial of the defendant of the allegations of the bill, the question before the sitting justice was one of fact, and it is well settled that on such an issue his finding will not be reversed unless the party who appeals shows that it is manifestly wrong. Androscoggin County Savings Bank v. Tracy, 115 Me. 433, 99 A. 257; Tebbetts v. Tebbetts, 124 Me. 262, 127 A. 720; Meader v. Cummings, 131 Me. 445, 163 A. 792.

The plaintiff testified that from 1923 to 1927 he was in the business of exhibiting moving pictures in Stonington and that during the same period the Stonington Opera Company, of which the defendant was a stockholder, was displaying pictures in competition with the plaintiff. He testifies that in September, 1927, he entered into an oral agreement with George H Noyes who was acting as agent for his father. The essential terms of the agreement are stated by the plaintiff as follows: "A. We agreed, orally, that I should have fifty per cent of the stock of the Stonington Opera Company and that he and I should manage the affairs of the company; that I should close up my theater that I was operating personally and they would allow me four hundred dollars for closing that theater, to offset some liabilities which I had in the building, and that we start operating as partners in the corporation, starting October 1st, 1927."

Pursuant to this arrangement the plaintiff according to his testimony closed his own theatre, was paid the $400 in accordance with the agreement, and October 1, 1927 became general manager of the theatre run by the Stonington Opera Company. George H. Noyes had charge of the mechanical operation and the finances, and both he and the plaintiff were paid $50 per month as salary which was cut during the years when business was poor. The plaintiff says that B. Lake Noyes took part in at least some of the conferences when theatre problems were discussed. G. Howard Noyes died before the filing of the present bill and the defendant complains that he is at a great disadvantage in presenting his defense because his son is not here to testify as to his dealings with the plaintiff. There is, however, no vagueness in the plaintiff's testimony and there is substantial corroboration of it in the exhibits which have been offered in evidence. These show that the plaintiff over a period of years received one half of the dividends declared by the corporation. One is a statement showing the application of one half of the dividends of $300 declared for the first quarter of 1928. This shows a total dividend of $300 and the "proportion to L. G. Tewksbury 150.00", a deduction of $108 for interest on $3,600 paid the defendant, and a check to Tewksbury of $42 to settle the balance. Another exhibit is a receipt to the plaintiff dated Oct. 9, 1928 showing $900 "to date on a/c purchase half interest in stock of Stonington Opera Co. Bal. due $3,100.00." This receipt is signed "G. Howard Noyes." Jan. 18, 1929 there is another receipt for $100 signed "B. L. Noyes, M. D. G. H. Noyes." This receipt bears the legend, "on a/c Opera Co. interests, making $1,000.00 pd on $4,000.00 half interest. Interest pd to date". Feb. 10, 1932 there is another receipt for $540 for interest "on balance due for 1/2 interest up to Jany 1, 1932, a/c now stands with 3,000.00 due on principal." This is signed "B. L. Noyes, M. D. G. H. Noyes". June 4, 1935 the plaintiff drew a check for $900 to the order of the defendant bearing the notation that it was "For interest and payment on principal on a/c purchase of half interest in stock of Stonington Opera Co." This was endorsed "B. L. Noyes by G. H. Noyes" and deposited to the defendant's personal account.

All of this evidence substantiates the claim of the plaintiff with respect to the substance of his contract with G. Howard Noyes, the son. Had G. Howard Noyes been alive at the time of the trial, would he have repudiated an agreement which he had repeatedly acknowledged over his...