Welch v. Nichols

• Decision Date: 30 June 1910
• Citation: 110 P. 89,41 Mont. 435
• Parties: WELCH et al. v. NICHOLS et al.
• Court: Montana Supreme Court

110 P. 89

41 Mont. 435

WELCH et al. v. NICHOLS et al.

Supreme Court of Montana

June 30, 1910

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Action by Howard K. Welch and another doing business as Welch & Harrington, against W. H. Nichols and another. There was a verdict and judgment for plaintiffs against defendant W. H Nichols, and from an order granting him a new trial plaintiffs appeal. Affirmed.

Mattison Cavanaugh, & Poore, for appellants.

C. M. Parr, for respondent.

BRANTLY C.J.

This action was brought to recover damages for a breach of contract of sale by plaintiffs to defendants of 5,000 shares of the capital stock of the Butte-Montana Mining Company. It is alleged that on November 13, 1908, the plaintiffs, as copartners doing business as brokers, sold to the defendants, also brokers, upon the floor of the Butte Exchange and under its rules, 4,300 shares at 55 cents, and 700 shares at 54 cents; that according to the terms of the contract the defendants had the option to demand, pay for, and receive the stock at any time within 10 days from the date of sale, Sundays and holidays excluded, but were bound to receive and pay for it within that time; that at the time the sale was made the plaintiffs informed the defendants that the stock was in Pittsburg, Pa., and could not be delivered until the expiration of four or five days thereafter, and that defendants consented to accept delivery after the expiration of that time; that afterwards the stock did arrive, and thereupon the plaintiffs offered to deposit it as an escrow in bank or in the hands of a third party, as provided by the rules of the Exchange, but that defendants stated that this would not be necessary; that by declining to have the deposit made, the defendants waived the requirement of the rules in this regard; that defendants failed to demand or receive or pay for the stock within the period of 10 days, although plaintiffs were ready and willing to deliver the same under the terms of the contract; and that on September 25, 1908, at the expiration of the time within which delivery might be made, plaintiffs offered to deliver the stock and tendered the same to defendants, but that the defendants refused to accept or pay for the same; that thereupon plaintiffs offered for sale, and sold, the stock on the floor of the Exchange in due course of business at public auction, for the best price obtainable, to wit, 35 cents per share, and that by reason of defendants' refusal to accept and pay for it at the stipulated price, the plaintiffs suffered damage in the sum of $993.

The answer denies that the defendant Sarah Nichols was ever associated with W. H. Nichols in business. It alleges that W. H. Nichols was a member of the Exchange; that on November 13, 1908, he bought from plaintiffs on the floor of the Exchange 4,300 shares of the stock of the Butte-Montana Mining Company, at 55 cents, and 400 shares at 54 cents; that he had the option of taking the shares at any time within 10 days from the date of purchase, upon payment of the price; that he was entitled, upon demand and payment of 20 per cent. of the price, to have plaintiffs deposit the shares together with said payment in a bank in the city of Butte to be agreed upon, as a guaranty for the fulfillment of the contract; that on November 14th and 16th he demanded of the plaintiffs a delivery of the stock according to the terms of the contract, but that they failed to produce and deliver it as required by the rules of the Exchange, or to tender it to him either at that time or thereafter; that in order to fill orders for the shares which he had so purchased from plaintiffs, he was compelled to buy other shares and use them in their stead. It concludes with a denial of all allegations in the complaint not specifically admitted. The reply joins issue upon the affirmative allegations in the answer. It then alleges that the defendants at the time of the sale agreed not to require a deposit of the stock as provided by the rules of the Exchange, and hence waived the requirement of the rules in this regard.

At the trial no evidence was introduced tending to connect the defendant Sarah E. Nichols with the transaction. The action seems to have been abandoned entirely as to her. In an event, the trial resulted in a verdict and judgment for plaintiffs against W. H. Nichols alone, for $936, the difference between the purchase price of 4,700 shares which he alleges he purchased, and the amount which these shares brought at sale on the Exchange at 35 cents. The appeal is by the plaintiffs from an order granting this defendant a new trial. The grounds of the motion were insufficiency of the evidence to justify the verdict, and errors of law occurring at the trial and excepted to by the defendant.

The order granting the motion does not indicate the particular ground upon which the court based its action. If, therefore it can be justified upon any of the grounds properly laid in the motion, it is incumbent upon this court to affirm it. State v. Schnepel, 23 Mont. 523, 59 P. 927. And though in a given case it may appear that the moving party was not upon any alleged error of law entitled to have his motion granted as a matter of right, the action of the court will be sustained if the evidence presents a substantial conflict; for in such case, unless the order expressly excludes the ground of insufficiency of the evidence, it will be presumed that the court, in the exercise of its discretionary power, granted the motion, because it was of the opinion that the evidence was insufficient to justify the finding of the jury. Menard v. Montana Central Ry. Co., 22 Mont. 340, 56 P. 592; Butte & Boston Min. Co. v. Société Des Mines de...