Walker v. Bamberger

• Decision Date: 09 July 1898
• Docket Number: 913
• Court: Utah Supreme Court
• Parties: WALKER ET AL., RESPONDENTS, v. BAMBERGER ET AL., APPELLANTS, AND J. R. WALKER, JR., RESPONDENT

54 P. 108

17 Utah 239

WALKER ET AL., RESPONDENTS, v. BAMBERGER ET AL., APPELLANTS, AND J. R. WALKER, JR., RESPONDENT

No. 913

Supreme Court of Utah

July 9, 1898

Appeal from district court, Salt Lake county; Ogden Hiles, Judge.

Action by Walker Brothers against Simon Bamberger, W. S. Fugate, and another. From the decree rendered, defendants Bamberger and Fugate appeal. Modified.

Care remanded, with directions.

J. L Rawlins, E. B. Critchlow and Brown & Henderson, for appellants Bamberger and Fugate:

The contract claimed by Walker, Jr., is within the statute of frauds, and is void because in parol. Grimes v. Van Vechten, 20 Mich. 410; Hinchman v. Lincoln, 124 U.S. 55; Allard v. Grezart, 61 N.Y. 1; Shindler v. Houston, 1 N.Y. 261; s. c. 42 Am. Dec. note 316; 1 Benjamin on Sales, sec. 187; Marsh v. Rouch, 44 N.Y 643-7; Rummick v. Sanford, 120 Mass. 316; Boldey v Parker, 2 B. & C. 37.

Even a written acceptance of an oral offer not complete under the statute of frauds will not bind either party. Washington Ice Co. v. Webster, 62 Me. 341; s. c. 16 Am. Rep. 462; Maynard v. Brown, 41 Mich. 299.

To be a receipt or acceptance by the buyer, there must be an intentional delivery by the seller; something more than mere words is required. 1 Benjamin on Sales, sec. 187 (Corbin); Browne Statute of Frauds, sec. 317; Shindler v Houston, 49 Am. Dec. note 316; Hinchman v. Lincoln, 124 U.S. 49; Marsh v. Sanford, 120 Mass. 319; Baldey v. Parker, 2 B. & C. 37.

An acceptance by the purchaser can have no effect to satisfy the statute after the vendor has disaffirmed the parol contract. 1 Benjamin on Sales, sec. 171 (Corbin).

Walker Brothers not only had authority, but were under the duty to inform themselves as to the contents of that paper. They, and all persons taking from them, had constructive notice of the terms of that document, and each was conclusively bound by them. This would be so if Walker, Jr., were a third party, in no manner connected with Walker Brothers. 2 Pom. Eq., secs. 626-628; 1 Story's Eq., 399; Duncan v. Joudon, 15 Wall. 165.

The assignment to Bamberger, and notice as aforesaid to Walker Brothers, perfected Bamberger's right to a one-half interest in the property as against all persons, but whether Walker Brothers had notice or not of the assignment, it was valid as against Walker, Jr., for the reason, (1) that he had no valid assignment of any right from Fugate, and (2) if he had anything it was a mere equity or an imperfect title, and he therefore had that title subject to all infirmities and imperfections, whether he had actual notice of them or not. 21 Am. & Eng. Enc. 567 and authorities cited. Fairbanks v. Sargent, 104 N.Y. 108-118; 2 Leading Cases in Eq., 67, 68 and 69.

Bennett, Harkness, Howat, Bradley & Richards, and Dickson, Ellis & Ellis, for respondent J. R. Walker, Jr.:

If, as in this case, an offer to sell is made partly in writing--for there can be no doubt that the instrument in writing comprises a part of the offer--and for a valuable consideration time is given within which it shall stand open for acceptance, such option is irrevocable. Bradford v. Foster, 87 Tenn. 4; Linn v. McLean, 80 Ala. 360; Souffrain v. McDonald, 27 Ind. 269; Hermon v. Babcock, 103 Ind. 461.

If no time is stated the offer will remain open a reasonable time. Fitzpatrick v. Woodruff, 96 N.Y. 565; Stone v. Harmon, 31 Minn. 512; Larmon v. Jordan, 56 Ill. 204.

It will be admitted by appellants and respondents that if an option is given for a consideration, it may be assigned before it is exercised, and the assignee may make the election, and enforce the contract. House v. Jackson, 32 Pac. R. 1027; Loffin v. Nagle, 9 Cal. 662; Napier v. Darlington, 70 Pa. St. 64; Bank of Louisville v. Bonmuster, 87 Ky. 6; Butler v. Thompson, 92 U.S. 412.

As we have shown, the contract between J. R. Walker, Jr., and Fugate, had two branches. One, consisting of the offer of Fugate to sell his option to J. R. Walker, Jr., upon the terms named in the writing, and the other in relation to the consideration which Walker was to give--the performance of the exploratory work, the proving up of the mine--for Fugate's leaving open the option. Upon the performance of these latter conditions by J. R. Walker, Jr., upon his giving the consideration named by the parties, and agreed upon, for Fugate's letting the offer stand open, and his tender or payment to the bank of the purchase money named in the escrow agreement, and the $ 150.00 to Fugate, Walker would be in a position to enforce specific performance of the contract; and by making the bank and Fugate parties to the suit, could compel the delivery of the stock, or could recover in an action at law. See 92 U.S. supra; see Ide v. Leiser, 10 Mont. 5; Houghwont v. Boisanbin, 18 N. J. Eq. 318; Corson v. Mulvaney, 49 Pa. 100 (88 Am. Dec. 485); Perkins v. Hadsell, 50 Ill. 216; Hall v. Center, 40 Cal. 65; Green v. Richards, 23 N. J. Eq. 32; Fessler's Appeal, 75 Pa. 483; Frese v. Houghton, 6 Colo. 318.

It was Bamberger's duty, if he pretended to any ownership of one-half of Fugate's option, prior to the 6th of November, to have notified Walker Brothers, plaintiffs, of his assignment and claim, otherwise a court of equity will postpone his claim, even granting he had any assignment or equitable claim, to that of any subsequent purchaser from Fugate, who was an innocent purchaser in good faith for a valuable consideration, and who gave the notice. In re Gillespie, 15 F. 735-736; Judson v. Corcoran, 17 How 612-615; Hopkins v. Page, 2 Brock 20-41; Spain v. Hamilton's Admr., 1 Wall. 604; National Bank v. Texas, 20 Wall. 72-89.

As to what is a cause of action and the test of new cause, we cite: Bliss on Code Pleadings, secs. 126, 162, 428, 429; Ency. of Law, secs. 556, 564, 567; Barnes v. Hekla Insur. Co., 9 Am. State 450; Esch v. Insur. Co, 16 Am. State 443.

There was no variance between the first cross-complaint of Walker, Jr., and the amended cross-complaint. Compiled Laws of Utah, secs. 3252, 3253, 3256.

As to the right of Walker, Jr., to amend so as to conform to the proof, and when the amendment may be made, we cite: 94 Cal. 446; 74 Cal. 191; 32 Cal. 343 and 344; Weeds v. Swafford, 75 Ia. 491; White v. Lyons, 42 Cal. 279.

S. McDowall, for respondents Walker Bros.:

To the effect that the action of interpleader brought by plaintiffs and respondents was a proper proceeding in such case as the one at bar, either with or without the aid of our Code, sec. 3189, Compiled Laws 1888, supra; see notes to Shaw v. Coster, 35 Am. Dec. pp. 695 to 712; Schluter v. Harvey, 65 Cal. 158; 11 Am. & Eng. Ency. of Law, p. 494 to 504; Pfister v. Wade, 56 Cal. 43; Gibson v. Goldthwait, 42 Am. Dec. 592; Providence Bank v. Wilkinson, 70 Am. Dec. 160; Tyus et al. v. Rust, 95 Am. Dec. 365; Clark v. Mosher, 1 Am. State 798.

ZANE, C. J. BARTCH and MINER, JJ., concur.

OPINION

ZANE, C. J.:

It appears from this record that J. C. Conklin and five others were on October 26, 1896, the several owners of stock in the Omaha Gold-Mining Company, aggregating 179,300 shares, and on that day they entered into an agreement with defendant Fugate whereby they gave him the option to purchase the same at any time on or prior to November 28, 1896, by paying 3.65 cents per share at Walker Bros.' Bank,--the amount due the respective owners to be credited according to an agreement with Fugate; and in pursuance of their agreement they placed the same with the bank, with directions to deliver it to Fugate, or to his order, according to an agreement duly signed by them and by Fugate, as follows:

"WALKER BROS.,

"Gentlemen:

Inclosed are 179,300 shares of stock in the Omaha GoldMining Company. If, on or before November 28, 1896, W. S. Fugate pays you, or causes to be paid for the credit of the parties mentioned below, the sum of 3 and 65-100 cents per share for all the stock herein inclosed, please deliver said stock to him or his order, and credit each party to this escrow the amount set opposite his name. If he fails to make the above-mentioned payment on or before the time mentioned, return the stock to us, as per list below."

The list consisted of the names of the respective owners, the number of shares owned by each, with the aggregate to be paid them respectively. No consideration appears for the agreement of the owners to keep their offer open until November 28, 1896, but all parties insist upon it, and we must recognize it as binding. It further appears that on November 5, 1896, Fugate and defendant Walker agreed that the latter should have a reasonable time in which to do development work on the mining claim at his own cost, to determine the quality of its ore, and to decide upon the purchase by him of the former's option. The terms of Walker's option to purchase Fugate's option, more definitely stated, were that the former should pay the sum of 3.65 per share for all the stock mentioned in the option to the latter, and place to the credit of the owners of the stock the sums coming to them, respectively, and a further sum of $ 150 to Fugate, and, without cost to him, deliver to him 24,700 shares of the stock, and do the development work without delay. Thus, it appears the first option was by the owners of the stock to Fugate, and the second was by him to Walker. The latter was an option on an option.

The appellants rely upon the salute of frauds, and insist that the option given to defendant Walker was a right to accept an offer to sell him certain mining stock, or, in other words, a right to it by complying with the terms of his option. Walker's option gave him the right, on the terms of his option, to take Fugate's right to elect on the terms of his option. Fugate intended to transfer his option to Walker for the...