Wescott v. Mitchell

• Decision Date: 25 July 1901
• Citation: 96 Me. 377,50 A. 21
• Parties: WESCOTT v. MITCHELL.
• Court: Maine Supreme Court

50 A. 21

96 Me. 377

WESCOTT

v. MITCHELL.

Supreme Judicial Court of Maine.

July 25, 1901.

(Official.)

Report from supreme judicial court, Cumberland county.

Action by George P. Wescott against James Mitchell. Case reported, and judgment for defendant.

Action to recover $7,657 and interest for 522 shares of stock of the St Croix & Penobscot Railroad Company, which the plaintiff averred that the defendant agreed to purchase of him, and pay for, at that price.

Argued before WISWELL, C. J., and STROUT, SAVAGE, FOGLER, and POWERS, JJ.

J. W. Symonds, D. W. Snow, C. S. Cook, C. L. Hutchinson, and H. B. Cleaves, for plaintiff.

C. E. & A. S. Littlefield, for defendant.

SAVAGE, J. Action for breach of contract to purchase and pay for the rights and interest of the plaintiff In 522 shares of the capital stock of the St. Croix & Penobscot Railroad Company.

The plaintiff and defendant had the contract for building the Washington County Railroad, and, for reasons satisfactory to themselves, they deemed it to be for their interest to secure a controlling interest in the capital stock of the St. Croix & Penobscot Railroad Company. Accordingly, on August 17, 1894, they made a contract with one C. A. Boardman trustee, for the purchase of 522 shares of the stock of that company, at $23 per share, and paid for the same. The sale by Boardman was on condition that the purchasers should construct an extension of the St Croix & Penobscot Railroad from its then terminus to the Maine Central Railroad, the extension to be commenced before July 1, 1895, and completed before December 31, 1896; and it was provided that if the construction of the extension should not be commenced before July 1, 1895, the agreement for the sale of stock should be null and void, and the stock, if demanded within four months after July 1st, should be retransferred to Boardman on his paying the purchase price and interest The stock itself was transferred to a trustee to hold for the benefit of the plaintiff and defendant. The extension not having been commenced within the time limited, Boardman elected to cancel the contract, and tendered back the money due under it, whereupon a new contract was entered into between Boardman and the plaintiff, Wescott, September 21, 1895, by which Boardman agreed that the stock should be assigned and delivered to Wescott, and Wescott agreed to pay the purchase price of $23 per share, and make certain other payments to Boardman. It was agreed that Wescott should hold the stock for the joint account of Boardman and himself, and that no sale of the stock should be made within three years, except by mutual agreement The profits arising from the holding or sale of the stock were to be divided equally between the plaintiff and Boardman. Afterwards, on October 25, 1895, the plaintiff and defendant entered into a written agreement between themselves concerning the use of this stock, and in that agreement the later Boardman contract was referred to, and some of its particulars specified. In this agreement it was recited that the defendant had paid one-half of the price of the stock; that the Boardman contract, though made in the name of the plaintiff, was and stood for the joint benefit of the plaintiff and defendant; that the defendant had an equal interest with the plaintiff in the stock and all rights thereunder; that the defendant was entitled to an equal share with the plaintiff in all profits derived from the stock or from the Boardman contract; and that the defendant on the date of the Boardman contract, September 21, 1895, had ordered the trustee to transfer his half of the stock to the plaintiff, who paid no consideration therefor. These recitals establish the fact that the defendant then owned one-half interest in the stock, but subject to the Boardman contract.

On March 2, 1896, the plaintiff withdrew from the contract for building the Washington County Railroad, and assigned his interests under the contract to the defendant and in the agreement of settlement between themselves of that date is found the following: "And said Wescott agrees to hold said St. Croix & Penobscot R. R. Co. stock as it now stands in accordance with the provisions of the agreement between himself and C. A. Boardman, trustee, dated Sept. 21, 1895, and the agreement between said Mitchell and himself dated Oct. 28, 1895, and not to make any repledge of said stock for any purpose at any time during the time limited in said Boardman's agreement; that he will transfer to said Mitchell, at said Mitchell's option, with the consent of said Boardman, trustee, all his rights in and to and all his interests under said agreement dated Sept. 21, 1895, upon said Mitchell paying to him all sums that he may have advanced on account thereof, with interest thereon, and assuming all his obligations thereunder, and guarantying him against all loss, cost damage, or expense on account thereof."

Still later the plaintiff and defendant made a further agreement concerning this stock, which we incorporate herein in full, as follows:

"Memorandum of a supplementary agreement between George P. Wescott, of Portland, Me., and James Mitchell, of Portland, Me., made this fourth day of December, 1897, supplementary to and explanatory of an agreement entered into between the same parties dated the second day of March, 1896, witnesseth that in order to make said contract of March 2nd, 1896, clearly conform to the original understanding of the parties thereto, the said James Mitchell hereby agrees to and with the said George P. Wescott to purchase and pay for the said Wescott's interest in the St Croix & Penobscot Railroad stock therein referred to, and pay said Wescott therefor the sum of seven thousand six hundred and fifty-seven dollars, with interest thereon from September twenty-first 1895, on or before September 21st 1898; and upon such purchase and payment, while said Mitchell is not to have an actual transfer of said stock, except by the consent of said Boardman, during the time limited as subject to said Boardman's consent he is upon said purchase and payment to succeed to and have all of said Wescott's rights in said stock, subject to said agreement between said Wescott and Boardman dated September twenty-first, 1895." It is for a breach of this latter contract on the part of the defendant that this action is brought.

The defense is twofold: First that by the terms of the contract the time of its performance is made essential, and that the plaintiff on his part failed and refused to perform within the time limited, namely, September 21, 1898, and that therefore the plaintiff is not now in position to compel performance on the part of the defendant, or to recover damages for nonperformance; secondly, that there was no consideration for defendant's promise.

Without assenting to or discussing the correctness, as a matter of law, of the first position taken by the defendant, we need only say that we think the evidence is plenary that for many days, even weeks, after September 21, 1898, the defendant...