Vilsack v. Wilson

• Decision Date: 31 December 1920
• Docket Number: 146
• Citation: 112 A. 17,269 Pa. 77
• Parties: Vilsack v. Wilson, Appellant
• Court: Pennsylvania Supreme Court

112 A. 17

269 Pa. 77

Vilsack v. Wilson, Appellant

No. 146

Supreme Court of Pennsylvania

December 31, 1920

Argued October 15, 1920

Appeal, No. 146, Oct. T., 1920, by defendant, from order of C.P. Allegheny Co., April T., 1918, No. 1800, granting new trial after verdict for defendant in case of Maurice Vilsack v. John S. Wilson. Affirmed.

Assumpsit for breach of contract. Before SHAFER, P.J.

The opinion of the Supreme Court states the facts.

Verdict for defendant for $8,340.50.

The court granted plaintiff's motion for a new trial. Defendant appealed.

Error assigned, inter alia, was order, quoting it.

The assignments of error are overruled and the order granting a new trial is affirmed.

John A Metz, for appellant. -- The measure of damages is the difference between the contract price and the market value of the stock at the time and place of delivery, with interest Bole v. Fulton, 233 Pa. 609; Rhey v. Plank Road Co., 27 Pa. 261; Herd v. Thompson, 149 Pa. 434; Ballentine v. Robinson, 46 Pa. 177; Unexcelled Fire Works Co. v. Polites, 130 Pa. 536.

Leading cases, holding that an option must be accepted on or before the time mentioned in the agreement, are as follows: Brown v. Slee, 103 U.S. 828; Wilson v. Davis, 5 W. & S. 521; Butler v. Leighton Borough School Dist., 149 Pa. 351.

W. L. G. Gibson, with him Robert J. Dodds, George D. Wick and Reed, Smith, Shaw & Beal, for appellee. -- The words of this contract "unless sold before the expiration of said one year from the date hereof" necessarily imply that defendant could not be required to repurchase until after the full year had expired: Weld v. Barker, 153 Pa. 465.

Before BROWN, C.J., MOSCHZISKER, FRAZER, WALLING and KEPHART, JJ.

OPINION

MR. JUSTICE WALLING:

This is an action of assumpsit for balance claimed on sale of corporate stock. The parties hereto, at Pittsburgh, on October 30, 1916, entered into a written agreement for the exchange of certain real and personal property, by which the defendant Wilson, party of the second part, agreed to transfer to the plaintiff Vilsack, party of the first part, inter alia, bonds as follows, viz: "Twenty (20) six (6%) percent interest bearing bonds of the Duquesne and Dravosburg Street Railway Company, of the par value of Ten Thousand ($10,000.00) Dollars, which the party of the second part agrees to re-purchase at said par value within One (1) year from the date hereof, unless sold before the expiration of said One (1) year from the date hereof, and also agrees to borrow for the said party of the first part, without his obligation, the sum of Seven thousand ($7,000.00) Dollars on said bonds, if the said party of the first part so desires." The bonds were delivered to plaintiff, but in December of the same year, at his request, defendant borrowed the $7,000 for plaintiff as agreed and pledged the bonds as collateral therefor. After the loan matured it was paid by defendant, who retained the bonds as his security. Before the end of the year named in the contract, a lady in plaintiff's employ (he being then in the army) had a telephone conversation with defendant, relating to the bond matter, but the evidence is conflicting as to whether it amounted to a demand on him to keep the bonds and pay plaintiff the remaining $3,000. However, she sent defendant a letter, in effect making such demand, which is dated November 2, 1917, and was received by him six days later. Plaintiff testified that about one month thereafter he had a personal conversation with defendant in which the latter promised to pay the $3,000, but that was denied. To the suit brought for the sum last above stated defendant denied his liability to repurchase the bonds and interposed the $7,000 loan, he had turned over to plaintiff, as a set-off. There was no evidence offered as to the market value of the bonds, and the trial judge directed the jury to find a verdict for the defendant for the $7,000. This was based on the ground that (a) a sufficient demand on defendant to repurchase the bonds was not made within the year, and (b) that plaintiff could recover only the difference between the contract price and market value of the bonds, which had not been shown. After argument, the court in banc held that the obligation upon defendant to repurchase the bonds did not arise until the end of the year and that plaintiff had a reasonable time thereafter in which to demand a fulfillment of the contract, and thereupon granted his motion for a new trial; from which defendant brought this appeal.

The conclusion of the court in banc was sound; for it could not be determined until the end of the year that the bonds would not be sold to others, and, as defendant's duty to repurchase depended on the failure of such sale, a prior demand on him would have been premature (Weld v Barker, 153 Pa. 465, 471), and plaintiff had a reasonable time after the end of the year in which to call upon defendant to accept and pay for the bonds. What is a reasonable time, if the facts are controverted, is for the jury, otherwise for the court: Swan v. Watertown Fire Ins. Co., 96 Pa. 37; Leaming v. Wise, 73 Pa. 173. There is nothing here to warrant the court in holding that plaintiff had lost his rights by delay. It is not necessary now to decide whether the agreement to repurchase amounted to an absolute contract at the end of the year or an option, which became absolute on plaintiff's acceptance (Markley v. Godfrey, 254 Pa. 99, 107; McMillan v. Phila....