Weed v. Lyons Petroleum Co.
Citation | 294 F. 725 |
Decision Date | 14 November 1923 |
Docket Number | 7. |
Parties | WEED v. LYONS PETROLEUM CO. |
Court | U.S. District Court — District of Delaware |
Charles F. Curley (of Saulsbury, Curley & Davis), of Wilmington Del., and Joseph A. Seidman, of New York City, for plaintiff.
James I. Boyce, of Wilmington, Del., O. D. Batchelor, of New York City, and C. F. Carnine, of Denver, Colo., for defendant.
A verdict for $30,800 having been rendered in favor of Harold K. Weed in his suit against Lyons Petroleum Company, the latter now moves for a new trial. The verdict represents the amount of damages assessed against the defendant for its failure and refusal to deliver to Weed the 87,000 shares of its treasury stock specifically called for by the following contract:
Lyons Petroleum Company, '(Signed) C. S. Downing, Vice President.
'Accepted: (Signed) H. K. Weed.'
The reasons advanced by the defendant in support of its motion are: (1) That the contract was admitted in evidence upon insufficient proof that it was the contract of the defendant; (2) that the court should have directed a verdict for the defendant; (3) that the verdict was against the weight of the evidence; (4) that the verdict was for excessive damages; and (5) that the verdict was against the law. The more important grounds upon which the defendant sought a directed verdict were: (a) That there was not sufficient proof to go to the jury that the contract was the contract of the defendant; (b) that in any event it is merely an option, lacking consideration to support it and is therefore void; (c) that it is likewise void for uncertainty; and (d) that there was no sufficient proof that the plaintiff tendered performance, or was ready, willing, and able to perform his part of the agreement.
Inasmuch as any error in admitting the contract in evidence without sufficient proof of its being the contract of the defendant was cured if, after its admission, evidence was admitted amply sufficient to establish that fact (City of Anthony v. Woonsocket Institution for Savings, 71 F. 97, 17 C.C.A. 622; Swenson v. Bender, 114 F. 1, 51 C.C.A. 627), the first above mentioned reason for a new trial becomes merged in subdivision (a) of the second reason, namely, that there was not sufficient proof to go to the jury that the contract was the contract of the defendant, and needs no separate consideration. A re-reading of the entire record for the purposes of the pending motion has convinced me that the evidence upon this point was not only sufficient to be submitted to the jury, but is so overwhelming that it admits of but one conclusion-- that of the jury.
The corporation was formed in December, 1919, with a capitalization of 3,000,000 shares, of the par value of $1 each, for the purpose of purchasing the Oklahoma oil properties of James G. Lyons. Defendant's Exhibits Nos. 1 and 3. Lyons and Downing were the two men who organized the company. Lyons' property was transferred to the company, apparently, in consideration of the full amount of the authorized capital stock. On January 12, 1920, two agreements were entered into with respect to the stock (Defendant's Exhibit No. 2 and Plaintiff's Exhibit No. 7); the former between the defendant company, Lyons, and Downing of the first part, Weed, Edwards & Co., of which the plaintiff herein was president, of the second part, and Lawyers' Title & Trust Company of New York, of the third part. It recites the agreements of December 10 and 23, 1919 (Defendant's Exhibits Nos. 1 and 3), for the purchase by Weed, Edwards & Co. of 1,200,000 shares of the capital stock of the defendant company; the appointment of Lawyers' Title & Trust Company as the depository of the stock pending the consummation of the purchase; the receipt of the stock by the trust company being acknowledged. The defendant company, Lyons, and Downing agreed to sell, and Weed, Edwards & Co. agreed to buy, the 1,200,000 shares of stock at the price of 50 cents per share, to be paid for in installments ending August 15, 1921. The trust company was authorized to deliver to Weed, Edwards & Co. 2 shares of the stock held by it for each dollar paid. The contract was to terminate and become null and void if Weed, Edwards & Co. became in default for 60 days.
The other contract of January 12, 1920 (Plaintiff's Exhibit No. 7), was between the defendant company, Lyons, and Downing, of the first part, and Weed, Edwards & Co., of the second part. It recited the agreement with respect to the 1,200,000 shares; that National Bank of Okmulgee, Okl., as trustee, 1,799,993 shares of the capital stock of defendant to be held as therein provided, the purpose being to keep those shares off the market so long as Weed, Edwards & Co. performed its contract with respect to the 1,200,000 shares. On April 12, 1920, the rights of Weed, Edwards & Co., a Delaware corporation, were acquired by a New York corporation of the same name, and new contracts were executed. A still further agreement changing the price to 75 cents per share was entered into on November 16, 1920. Plaintiff's Exhibit No. 1. On September 14, 1921, the price was again reduced to 50 cents per share, and the trust company was notified accordingly. Plaintiff's Exhibit No. 2 and Defendant's Exhibit No. 6. Up to October 26, 1921, the only stock sold was that sold under the Weed, Edwards & Co. contracts. On the last mentioned day the Lawyers' Title & Trust Company held on deposit, under the terms of the agreement of November 16, 1920, 290,450 shares; on November 1, 1921, it had 169,750 shares, which remained on deposit with it until May 1, 1922. 'The Lyons Petroleum Company was and always was Mr. Lyons and Mr. Downing; no one else. ' 'You mean those two men largely controlled it? ' 'Did control it.' Lyons 'directed the affairs of the Lyons Petroleum Company with reference to its finances and with reference to its field operations. ' From the beginning Lyons attended to the field operations in Oklahoma. Downing remained in New York, taking care of the New York business of the corporation. Downing 'was looking after the marketing of the Weed-Edwards stock'-- 'the main business of the corporation in New York for a year preceding December 1921. ' He 'was in charge of the stock operations in New York City. ' The contracts with Weed, Edwards & Co., to which the corporation's seal was affixed, attested by the secretary, were signed on behalf of the defendant by Lyons. Weed, says Lyons, 'was familiar with every act of the officers of the corporation,' 'and was just as familiar with the situation as I was. ' Weed says, 'I am quite sure that no formal meetings (of the board of directors) were held. ' During October, 1921, Lyons became desirous of supplanting the Weed, Edwards & Co. contract of November 16, 1920 (Plaintiff's Exhibit No. 1), as modified September 14, 1921 (Plaintiff's Exhibit No. 2; Defendant's Exhibit No. 6), by a contract with Ehrich Company. To do this it was necessary to eliminate the Weed-Edwards contract. On October 24th Lyons sent to Downing the following telegram (Defendant's Exhibit No. 13):
Downing replied (Defendant's Exhibit No. 7), October 26th, thus:
'New York, Oct. 26, 1921.
'James G. Lyons,...
To continue reading
Request your trial-
Mercantile-Commerce Bank & Trust Co. v. Kieselhorst Co.
...328; Walter v. Duffy, 287 F. 41; Heiner v. Crosby, 24 F.2d 191; Rogers v. Strong, 72 F.2d 455; In re Schuyler, 63 F.2d 241; Weed v. Petroleum Co., 294 F. 725. C. Hyde and Dalton, CC., concur. OPINION BRADLEY This is an action to recover the balance due on a note for $ 62,000, after the sale......
-
Sheats v. Bowen, Civ. A. No. 3675.
...For a new trial to be granted "the verdict must be manifestly and palpably against the evidence in the case." Weed v. Lyons Petroleum Co., 294 F. 725, 733 (D.Del.1923), aff'd 300 F. 1005 (C.A.3, 1924). It is not proper for the trial judge to substitute his opinion for that of the jury by gr......
-
Petersen v. Wellsville City
...(C. C.) 2 F. 660, 661; Neis v. Yocum (C. C.) 16 F. 168, 170; Kent v. Addicks, 126 F. 112, 114, 60 C. C. A. 660; Weed v. Lyons Petroleum Co. (D. C.) 294 F. 725, 732; Gray v. Smith, 83 F. 824, 829, 28 C. C. A. 168; Hampton v. Speckenagle (Pa.) 9 Serg. & R. 212, 222, 11 Am. Dec. 704; Bigler v.......
-
Taysom v. Taysom
...certiorari denied 283 U.S. 851, 51 S.Ct. 560, 75 L.Ed. 1458. See also Montanus v. Buschmeyer, 158 Ky. 53, 164 S.W. 802; Weed v. Lyons Petroleum Co., D.C.Del., 294 F. 725, affirmed 3 Cir., 300 F. Respondent, by her only assignment on her cross-appeal, complains that the trial court erred in ......