Diamond State Iron Co. v. Todd , 6 Del. Ch. 163 ( 1888 )

The Chancellor.

The complainant in this suit, a. corporation existing under the laws of this State, states that there stand in the name of Jethro T. McCullough, one of the defendants in this cause, 105 shares of the-capital stock of said company which were transferred to-the said defendant on the 28th day of December, A. D. 1878, by George C, Simpson, executor of Jethro T. McCullough, deceased. That in the latter part of the year-1881, the president of the said corporation complainant was notified by the defendant George W. Todd that he had become purchaser of said stock, then and theretofore appearing in the name of the said defendant McCullough on the boobs of the said corporation. It appearing that McCullough having refused to assign said shares of capital stock of said company to Todd, he, Todd, gave notice to the president of the corporation that he had purchased of Jethro T. McCullough his entire interest in the company, including all his stock and the accrued dividends thereon, and all his shares of the surplus fund and the accrued interest thereon;^ and that, although McCullough refused to make him proper transfers thereof, he should insist upon his compliance with his contract. “Tour company,” he says, “is hereby notified and required to make no transfers of said stock or payments of said dividends, surplus fund, or interest, except to me or upon my order.”

Subsequent to the date of said notice, McCullough, through his attorney, made a formal demand upon the complainant for the payment to the said McCullough of' all dividends then and theretofore accrued upon the said 105 shares of stock, which demand, in view of the conflicting claims upon the complainant with respect to the stock, it says it was unable to comply with. A suit was afterwards instituted against the company, in the District. Court of the United States by McCullough.

It appears by the bill that Edward Darlington claims-an interest in said stock by way of an assignment of the same to him as collateral security for a debt. The bill prays that Todd, McCullough, and Darlington may inter-plead with each other with resjiect to their several interests and rights in the subject-matter in dispute. A decree of interpleader was entered by consent and agreement of all the parties, complainants and defendants. It was also ordered, upon like consent and agreement, that the complainant (at or before the first day of the next ensuing term of the Court of Chancery, in and for New Castle County) pay into court the sum of $9,149.80, being the amount in the bill mentioned as the amount of accrued dividends and interest on said stock—the said sum when so paid into court to abide the decision of the court as to the rights therein of the parties respectively.

It was also ordered by like agreement and consent that the complainant “ pay into court all such other and further dividends, interests, and moneys as have accrued upon said stock since the filing of said bill, and which may hereafter accrue upon the same when and as the same shall become due and payable.”

The whole proceedings up to this stage of the cause seem to have been amicably arranged and agreed upon by the solicitors for the parties respectively, as per agreement in writing filed in the cause.

The answers of the defendants have been filed and the proofs taken. There seems to be no controversy as to the rights of Darlington, the stock having been pledged to him without notice of any controversy in respect to the same between Todd and McCullough. The question, therefore, for me to decide is to whom the stock, dividends thereon and interest on the surplus in controversy in equity belongs; or, in other words, Was the contract in respect thereto between Todd and McCullough such a contract as a court of equity will by its decree specifically enforce ?

Specific performance as to contracts has been defined “ the actual accomplishment of a contract by the party bound to fulfill it.” “ Performance of a contract in the precise terms agreed upon; strict’ performance.” This is a sufficient definition for the purposes of this case. A court of equity must interpret a contract between parties •as it is made by them. It cannot make a contract for parties. It is the established rule that “ a specific performance of a contract of sale is not a matter of course, but rests entirely in the discretion of the court upon a view of all the circumstances.”

Says Chancellor Bates, in Godwin v. Collins, 4 Houston, 47: “A court of equity will not interfere to set aside a contract upon any ground short of incompetency or fraud; but when called upon to enforce a contract specifically, the court will go further and inquire whether the contract is an equitable one—such as a court •of equity, seeking only to do equity, ought to enforce— not that this court will weigh nicely the relative advantages or disadvantages of a bargain fairly made; but it will consider whether, either from gross inadequacy of consideration or inequality of term's, such as shocks the common sense of justice, or from anything in the relations of the parties or in the circumstances of the contract, it is unconscientious for a party to exact his advantage. How, as it is impossible to reduce within the limits of a legal definition or rule the various and complicated transactions which may render a contract inequitable, the court must unavoidably deal with each case upon its own circumstances. Herein, precisely, appear the nature and limits of the discretion assumed by the court for this branch of its jurisdiction, and also in what sense it is that a specific performance is said to be ‘not a matter of course.’ The relief lies in the discretion of the court so far, and only so far, that it must necessarily judge whether under the circumstances of the case the contract is or is not an inequitable one.”

Again; the same chancellor says in the same case: “ But, whatever be the grounds of the doctrine, the discretionary character of the jurisdiction for specific performance, the power to grant or refuse relief according to the equities of the particular case, has become settled, by authority of the most eminent judges of all times.”

Without further elaboration on this point it is suificient to refer to the opinion in the case of Godwin v. Collins, where this and other principles applicable to-this case are satisfactorily discussed.

In order to determine whether Todd, one of the defendants, is or is not entitled to a decree in his favor, it, is necessary to consider whether his contract of purchase from McCullough, of his interest in the Diamond State Iron Company, which is hereafter set out, is or is not such as a court of equity, in the exercise of a reasonable and just discretion, would enforce specifically upon a bill filed by him for that purpose. It is not material to the proper decision of this case that such a bill has not been filed. The principles which would govern a court of equity in the determination'of a bill for the specific performance of the contract necessarily arises in this bill of interpleader in which the rights of the parties are to be determined.

It is a general rule that courts of equity will not interpose by decree for specific performance of contracts for the sale or delivery of goods or chattels, because compensation at law is generally adequate in such cases; yet there are exceptions to this general rule as in articles of exceptional value. Goods which have a peculiar value— as articles of curiosity, antiquity, or affection, the loss of which could not be estimated in damages—will be decreed to be delivered to the person entitled, such as family ¡Dictares, furniture, or heirlooms. So specific performance will be decreed of a contract for the delivery of chattels which no one but the defendant can supply and which are necessary to enable the plaintiff to fulfill an engagement with a third person, as if a man were to contract to furnish timber to a ship builder who had agreed to complete a ship by a given time, which he could not do unless the timber was supplied by the defendant; but not where the delivery of the chattels by the defendant is a mere question of convenience, nor where a decree of specific performance would enable a complainant to have the benefit of an unfair, inequitable, or unconscionable contract or agreement.

As a general rule equity will not decree for specific performance of contracts relating to personal property,, for the reason that compensation in damages is ordinarily sufficient. Sometimes, however, the detention of chattels cannot adequately be redressed by damages; and in such cases the jurisdiction of equity attaches. This is not ordinarily the case for the sale of stock.

I shall not cite the numerous authorities easily accessible in support of these propositions.

I will further remark that contracts for the sale or assignment of things in action may be enforced by the purchaser, by compelling a transfer and delivery where the legal damages might be too uncertain and conjectural to constitute an adequate compensation.

And since the remedy must be mutual the vendor may also maintain the action in such cases.

In respect to stocks it is the settled rule in England, and the United States that contracts for public securities, government stocks, bonds, etc., will not be enforced, since they are always to be bought in the market.

But contracts for the sale of railway and other business corporations, and shares and bonds will be enforced in England.

The recent English reports abound in such cases. But in the United States all such securities are ordinarily purchasable in the market; and the rule is settled by the weight of authority, although there are some cases to the contrary, that contracts concerning stocks and bonds of corporations, like those concerning government securities, will not be specifically enforced.

I deem it unnecessary to refer particularly to the many authorities which support these propositions.

In the case of Godwin v. Collins, 4 Houston, 28, which was an appeal from Chancellor Bates, the court of appeals announced the following principles : “ The general doctrine of a court of equity is that decreeing of specific performance of a contract is discretionary, especially in those cases in which the" party may have adequate compensation at law in the shape of damages for the injury actually sustained; for in such cases the court will not feel itself bound to interfere, but will leave him to pursue his remedy in a court of law. In these cases it is not what a court of equity must do, but rather what it may justly do under the circumstances.

“ In the case of a contract in respect to the sale of land, it must be in writing according to the Statute of Brands; and it must be ... so complete and perfect, indeed, as to manifest clearly the terms of the contract and the intention of the parties; and as it is required'to be in writing, the writing must speak for itself. Defects cannot be supplied in it. It must be certain in itself, or capable of being reduced to certainty,' by reference to something else which is thus made a part of it, so that the terms of it, and the intention of the parties, can be ascertained with reasonable precision. These rules may, however, be modified in cases of fraud, or part performance of the contract, when they exist.

“ But when the case stands on the naked agreement alone, and the complainant has not been put in possession of the property, nor has made any improvement, nor expended any money on it, nor has in any respect been led in consequence of the agreement to do anything which has resulted to his detriment, the court will not decree the specific performance of it.

“ And where the stipulation in the agreement is that one half of the purchase money is to be paid by the purchaser on the day the possession of the premises is to be given, and the remainder^ in installments of $500 each, payable with interest annually, commencing J anuary 1, 1868, but without any provision in it for securing such deferred payments, the court will not supply the omission of it, or infer that it was the understanding and intention of the parties that they:were to be secured in the usual method in such sales, by bond and mortgage, or decree a specific performance of the agreement, notwithstanding the complainant tenders one half of the purchase money on the day appointed, and his bond and mortgage on the premises for the deferred payments as stipulated, and in his bill submits himself to the order and direction of the c'ourt in that particular. The vendor’s equitable lien for the unpaid purchase money, at best, would be but a very imperfect and inadequate security.

“ The exercise of a sound discretion according to the circumstances of each particular case lies at the very foundation of this extraordinary jurisdiction of specific performance of contracts; and the court, though not exempt from the general rules and principles of equity in granting or withholding relief, uniformly acts with greater freedom than when exercising its ordinary powers.”

The agreement in Goodwin v. Collins was as follows :

Rec’d Aug. 20, ’66, of D. C. Godwin, ten dolls, in part payment of the purchase money of the farm and premises where I now live, containing sixty-six acres, possession to be given on or before Jan. 1,1867, clear of all taxes or incumbrances whatever, four thousand, dolls, to be paid when possession given, the remainder in installments of $500 each, payable with interest annually, commencing Jan. 1,1868; the said Godwin to have the privilege of anticipating the deferred payment.

Witness my hand and seal.

S. M. Collins [Seal]

The whole purchase money to be eight thousand dollars ($8,000).

S. M. Collins.

The chancellor refused to decree a specific performance of this contract, and on appeal the court of appeals affirmed his decree, dismissing the bill.

The contract between Todd and McCullough, which is sought to be enforced in the case before me, is as follows :

Wilmington, Del., Sept. 21, 1881.

Geo. W. Todd :

Dear Sir,—I will sell my entire interest in the Diamond State Iron Co. (which includes my stock, and amount to my credit of the surplus fund) for the sum of $10,500; of this amount I will take $3,000 cash November 1,1881, and the balance due me, $1,500, you can pay me along as it suits you, within and during the next five years, say by November 1, 1886. Interest to be computed at the rate of 5 per cent per annum from November 1, 1881. Accrued interest on my stock and on the amount to my credit of the surplus fund, to go with the stock, and is included in the above $10,500.

(Witness at signing)

John W. Todd. J. T. McCullough.

Indorsed across the face of the above is the following :

Wilmington, Sept. 21, 1881.

I hereby accept your offer for your entire interest this ■day in the Diamond State Iron Company as per this letter. G-eobge W. Todd.

The above letter was written by Todd, and signed by McCullough. The indorsement thereon was written and -signed by Todd.

To give effect to the claim of Todd in this suit, and to make a decree in his favor, would be to give him all the benefit under this contract that could be given to him "in a suit by him against McCullough for the specific performance of the contract, and this is in substance what he asks to be done by his answer, and such doubtless is the understanding of his solicitors who drew that answer.

The second and third prayers incorporated in that answer are as follows: “That the said McCullough be decreed specifically to perform his said agreement for the sale of his entire interest in said company, and to "transfer to the defendant said 105 shares of the stock of said company and all of his share in the surplus fund of said company, and all the scrip and cash dividends which have accrued or may accrue, or which have been declared, ■or may be declared on said stock, and the interest thereon, and to deliver up to the said defendant all certificates and papers in his possession or control relating to the same, he (the said defendant) paying the said purchase money as the court may direct; that the said company be decreed to pay and deliver to the said defendant all the ■share of the said McCullough in the surplus fund of said company, and all the unpaid scrip and cash dividends which have accrued or may accrue, or which have been declared on said stock, and the interest thereon, and all certificates relating to said stock and said scrip dividends, and all moneys due from said company on account of said -stock; and that said company be decreed to do and perform, and suffer and permit to be done and performed,, all such acts and things as may be necessary for the transfer to the said defendant of the entire interest of said McCullough in said company.”

It is not pretended that the cash payment of $3,000 was made on the first day of December, 1881; and it is-not stated in the contract that the stock of McCullough and his credit in the surplus fund which is included in the contract to sell his entire interest in the Diamond State Iron Company were to be transferred on the first day of December, 1881, or when said cash payment-should be made. Nor does the contract contain any stipulation in this respect.

That such transfer was to be made December 1, 1881,. can at most only be a matter of inference. And this inference would necessarily lead to the further and greater-inference that McCullough was to transfer all his interest in the company for less than one third of the contract price, without any security for more than two thirds of that contract price, and without any stipulation in respect to the payment thereof before November, 1886.

The contract contains no stipulation as to the time-when the interest or any part thereof was to be paid on the sum of $7,500.

The only thing stated in the contract in respect to the payment of the $7,500 is that he, Todd, could pay that-sum “along as it might suit him within and during the next five years, say by November the first, 1886.” The contract fixes no time for its payment or any part thereof, previous to November 1, 1886. No security for its-payment or any part thereof before that period, or even at that period was provided for in the contract; and to any demand by McCullough on Todd for the payment of that balance or any part thereof, a sufficient answer by him would be that it did not suit him to make any payment in respect to the same.

The contract contains no stipulation as to the times when interest should be paid on the sum of $7,500, the deferred payment. It does not stipulate that the interest should be paid annually, so that Todd might refuse to pay any interest before November 1, 1886.

The only stipulation in this respect was that the interest should be computed at the rate of 5 per cent per annum from November 1, 1881.

Todd does not agree that interest should be paid annually on that sum, but that the interest on the sum of $7,500, which was payable on November 1,1886, should be computed at the rate of 5 per cent per annum; and the contract does not state definitely and with certainty at what periods»such interest should be paid.

A contract to be specifically enforced must be without ambiguity and uncertainty; it cannot be merely the subject of inference.

It must in its terms be clear, definite and certain. It must be a contract by the parties to it, and not a contract made by the court for the parties. It cannot be changed, altered, or varied by any tribunal, legal or equitable. It must be complete and perfect in itself, and certain in all its provisions. For these reasons alone the court could not decree the specific performance of said contract.

The solicitors for Todd attempt to distinguish this case from the case of Godwin v. Collins, supra, in these respects:

1. The subject-matter is not real estate, but shares of stock; and provision for security is not uniformly or usually inserted in contracts for the sale of the latter as of the former.

2. In this case the failure to claim security is evidence of security.

3. There is here no uncertainty in the character and meaning of the contract.

4. Ambiguity, real or imaginary, as to payments of interest, or as to time of transfer, and the omission of provision as to security, are .rendered wholly unimportant -and immaterial by the tender of full payment.

5. The balance of the price would be put in no jeopardy by a decree of specific performance in this case.

6. The questions here arise in an interpleader suit.

I do not think these attempted distinctions are tenable. It must be borne in mind that the writing, termed the contract, which Todd drew and which McCullough signed and which is the only one, if any, under which Todd can claim the stock, dividends and scrip of McCullough in the Diamond State Iron Company, is the only contract between the parties in respect to the same. It is this contract and no other which this court could specifically •enforce; and Todd can have the advantage of no contract in this case which a court of equity would not specifically enforce upon a bill filed for that purpose. It matters not that a contract relates to personalty, and not to land. It is true that a contract in respect to the sale of land must be in writing and that this is not generally necessary in respect to the sale of personalty; but this particular contract was in writing, and being reduced to writing it speaks for itself, and a court of equity no more than a court of law has any right to add to or subtract from its provisions. And the declaration that the provision for security is not uniformly or usually inserted in contracts for the sale of shares of stock as it is in the sale of land is simply assertion without proof and without reason; and all the reasons for the nonenforcement of a contract in respect to land equally apply in respect to contracts for the sale of shares of stock in this respect, nor is it reasonable to assert that the failure' to claim security is evidence of security more in the one case than in the other. As to there being no uncertainty in the character and meaning of the contract between McCullough and Todd, I cannot perceive that it is less wanting in certainty, especially in reference to the payment of the balance of $7,500, than the contract between Collins and Godwin. It is certainly much more unreasonable and much more wanting in consideration and deliberation .in that it only specifies that the payment of the large sum of $7,500 might be paid along as it might suit Todd within and during the next five years, say by November the first, 1886; and all the remarks made by OMef Justice Gilpin in the case of Godwin v. Collins, upon appeal, in respect to the payment of interest, are equally applicable to the contract as between McCullough and Todd.

In respect to the fourth distinction as to ambiguity, as to the payment of interest, as to time of transfer and ■omission of provision as to security, and the allegation that they are held wholly unimportant and immaterial by the tender of a full payment, a sufficient answer is to be found in the fact that such tender was not made before or at the time the contract was signed nor by the ■first of November, 1886, but afterwards, if made at all. It seems to have been an offer by letter merely, and only when McCullough had discovered that his interests in the company was much more valuable than "what the writing purporting to be a contract had led him to suppose them to be, and therefore had refused to comply with the contract. No governing weight can be given to the allegation that “the balance of the price would be put in no jeopardy by a decree of specific performance in this case;” because, if the contract in this case is determined by its •own terms and provisions, much greater jeopardy would •exist in it than in the case of Godwin v. Collins, in which latter case a mortgage to secure the balance of the purchase money was tendered by Godwin, the purchaser.

It is wholly immaterial that the questions arising in this case arise in an interpleader suit.

They are no more or less, in principle and effect, than those which would arise in a suit for specific performance of the contract. I think that the objections stated by Chancellor-Bates to a decree for a specific performance in the case of Godwin v. Collins, founded upon the want of certainty and security in reference to the deferred payments and those stated by Chief Justice Gilpin upon an appeal in the same case and founded upon the want of consideration and deliberation, evidenced in the contract in that case, equally apply to the present case.

I shall not enter into an examination fully of all the testimony in this case. It is sufficient to remark that no one, in my opinion, upon reading that testimony, can fail to be impressed with the fact that the situation of the parties to the contract, in respect to the value of the interest of McOullougli in the Diamond State Iron Company, was not equal, but greatly and amazingly unequal.

Todd had the means of .knowing, and doubtless did know, with much greater certainty and accuracy the value of those interests than McCullough. He was not only a stockholder, as was McCullough, in the company, but he was its secretary. It is not necessary to decide that being such secretary to the company he sustained a relation of trust and special confidence to each individual shareholder in the corporation. But being such secretary, and as such having charge of the books and records of the company and cognizant of the business affairs of the company and of its records and acts, he necessarily possessed that amount of information in respect to the value of its stock, scrip, and dividends which could not. be equally known to the individual stockholders of the company. It is not necessary to determine, nor do I think it material to inquire, who commenced the negotiation, McCullough or Todd, in respect to the sale and purchase of McCullough’s stock and interest in the company. The statements of Todd and McCullough under oath in respect to this matter are directly opposed. ¡No one else had any knowledge in respect thereto. Possessing the advantage which Todd did as to knowledge of the value of the stock and interest of the stockholders in the company, he was bound, as a frank and honest man in the negotiation of sale and purchase of McCullough’s interest in the company, not to make any statement or declaration that would impose upon or in any way mislead or deceive McCullough.

There is no testimony in this cause in respect to McCullough’s business capacity which would justify the declaration that he was wholly unfit to have the management of his estate; but if the testimony in this cause is to be believed, he certainly did not evince that capacity for business transactions which is ordinarily to be expected in those possessing considerable business interests. The father of McCullough seems to have been a large stockholder in the Diamond State Iron Company. He died and his executor transferred to Jethro T. McCullough and at least one other, if not more of his children, stock in this company amounting in the share to each to $10,500. The shares of one of these brothers Todd bought in 1879 for $75 a share, when the par value thereof was $100 per share; and he apportioned that stock between himself, Mendinhall, the president of the company and Smyth and Davis, officers and directors of the company. There seems to be ho other portion of this stock sold or purchased afterwards until September 21, 1881, when the alleged contract between Jethro T. McCullough and Todd was entered into.

Who commenced the negotiations in respect to this contract, as before stated, does not sufficiently appear by the evidence in this cause—the testimony of Todd and McCullough thereto being flatly contradictory. In the letters which are in evidence, which Todd wrote to McCullough, I cannot think that he was frank or evinced that sincerity which, under the circumstances, he should have evinced. He evidently endeavored to impress, McCullough with the idea that his stock in the company was not worth more than its par value. He stated that, he did not know where he could place the stock. There-is no proof that he even made any inquiry in respect to that matter or that he ever sought to place it anywhere, than under his own control and for the interest of himself and two or three others, officers of the company who might wish to “even up” their stock. His own evidence is to the contrary. He wanted it for himself. These others were the same officers and persons among whom he divided the stock which he had theretofore in 1819 purchased from John McCullough, the brother of Jethro. His zeal for the possession of the stock was apparently greatly enhanced after the contract was signed. It was. evidently much greater than it was when McCullough made inquiry of him what he would give him for his. stock.

I cannot avoid the conviction, from the proofs in this cause, that the interest of Jethro T. McCullough in the-Diamond State Iron Company which.was agreed by him to be sold to Todd, was on the day when the contract was made worth at least not less than one half more than the amount stipulated in the contract; and that Todd knew this fact, which McCullough did not in fact know, notwithstanding he, McCullough, may have attended and. did attend the meetings of the stockholders in 1880 and 1881. The dividends due on the stock and what was due on the surplus scrip in the short time after the contract was signed within the period of five years seems to have amounted to about $9,000; not greatly unequal to the contract price of the interest agreed to be sold by-McCullough to Todd.

How this contract between McCullough and Todd is not an executed contract, but an executory contract.. This is a proceeding not to rescind the contract, but in effect, as far as the interests o £ Todd are concerned, to decree its specific performance. I would not under these circumstances decree a specific performance of that contract if a bill was filed for that purpose; and, considering contracts such as I have described unequal, unfair, and unjust, I shall refuse to make any decree by which Todd can avail himself of the benefits of it, but shall leave him to assert his rights under the contract to a court of law, where a jury may award him whatever damages for its violation they may believe him to have sustained. He has not proved before me that he has. sustained any. He has not paid one dollar of money under the contract; but appears to have received the first payment of interest in the surplus fund.

As to the argument that this stock had no market value, and could not therefore be substituted by the purchase of similar amount in the market, it is sufficient to say that there was nothing that made it particularly valuable to Todd other than the gain he would make by the difference in price which he was to give and the real value of the stock at the time the contract was made. Indeed, this corporation seems to have been a particularly close corporation,—one which did not permit the value of its stock to be quoted in the -market. It is reasonable to infer from the proofs in this case that the original shares of stock remained in the possession and control of the original holders thereof, with exception of the interest of a brother of Jethro T. McCullough, which the defendant disposed 'of some time previously. But the means of determining the damages which Todd had suffered, if he has suffered by reason of noncompliance with the contract, are abundant in a court of law. It. there would he perfectly competent for him to avail himself of the testimony of every one of the eight or ten shareholders in the company to prove the value of the stock at the time of the alleged contract of purchase, and he himself as the law of this State now is might become a witness in respect thereto. There certainly would be no denial of justice should Todd’s case be heard by an honest jury who might assess such damages as they believed him to have justly sustained.