Hammond v. Noble ( 1907 )

Carpenter, J.

Complainant brings this suit in equity to specifically enforce a contract whereby he agreed to buy and defendant agreed to sell 100 shares of the stock of the Michigan Fire & Marine Insurance Company. The circuit court dismissed his bill and he appeals to this court.

It is the claim of complainant that by his contract of purchase — which was an oral contract — he was to take the stock “subject to any assessment thereon on account of recent losses of said insurance company by fire in San Francisco, California, and elsewhere.” It was the claim of defendant that by the contract of purchase complainant agreed to guarantee said assessment. Upon this issue the testimony was in conflict, and we agree with the trial judge that complainant did not establish his case by a preponderance of testimony. In other words, we are not convinced that the contract was as complainant avers, and on this record we are compelled to find that it was as defendant claims. That contract complainant has no right to have specifically performed, for before suit was instituted he refused defendant’s proffer to perform it. It is not to be assumed from this opinion that complainant had a right .to specifically enforce the contract averred in his bill. In the view we have taken of this case it is unnecessary to decide that question and we have not decided it.

Decree affirmed, with costs.

Me Alva v, C. J., and Grant, Blair, and Montgomery, JJ., concurred.