Floyd v. Hotchkiss ( 1897 )

Opinion by

Beaver, J.,

As this case finally went to the jury in the court below, the recovery was based upon the following writing given by the defendant to the plaintiff:

“f800.00 February 1st, 1893.

For value received, I promise to pay A. B. Floyd Eight hundred dollars (1800.00) or eight shares of Whipple Loan & Trust Company stock, and I guarantee the said stock and the payment thereof at one hundred cents on the dollar for two years from the date hereof, and at any time the said A. B. Floyd wishes to dispose of the said stock at its full face value I am to have the first choice to purchase and redeem the same.

Witness: A. Mook. D. A. Hotchkiss.”

It is evident that this paper constitutes a warranty and not a guaranty. It is the promise to pay $800 or eight shares of the Whipple Loan & Trust Company stock, warranted to be worth $800. The eight shares of stock having been transferred to the plaintiff, there was and could be no right on his part to sue for or attempt to recover the value thereof from the Whipple Loan & Trust Company. A corporation cannot be compelled by an action at law to make good its own stock in the hands of its stockholders, hence the terms and conditions of a technical guaranty could not in the nature of things be enforced. The. writing constituted a warranty of which there was a breach whenever the stock fell below its par value in the market, and an action was maintainable thereon whenever the defendant after notice and upon demand failed to make it good. The question of value involved is not one of real or ultimate value but of present, available money value in the hands of the plaintiff. The testimony of both plaintiff and defendant was such as would justify the court in submitting to the jury and would justify the jury in finding that the value of the stock was not such as would enable the plaintiff to use it in lieu of money. In this view of the case we can see no error in the portions of the charge of the court assigned for error in the third, fourth, fifth, sixth seventh and eighth assignments.

As to the second assignment of error it is not made in accordance with our rules, and in addition thereto no exception was allowed, although one was asked, to the ruling of the court upon the refusal to admit the statements of the Whipple Loan & Trust Company attached to the depositions of A. A. Whipple at the trial. Why the court failed to allow the exception asked for we do not understand. It was evidently an oversight, but the record fails to show the allowance of an exception, and in its absence we cannot consider the question involved. The second assignment is therefore overruled.

The first assignment of error must be sustained. If the Whipple Loan & Trust Company had been a party to the suit in any way, the declarations of its officers would have been competent evidence. The scope, of the inquiry was entirely relevant but the testimony offered was certainly incompetent. A. A. Whipple, the president of the trust company, was a competent witness. His testimony had been taken and was read by the plaintiff as a part of his case. Why then should his mere declarations verbal or written as to the principal question in controversy be competent? The testimony, as it went to the jury, was the recollection of the plaintiff as to the contents of a letter, alleged to be lost, written by the president of the trust company, himself a witness in the case, relating to the value of the stock •which was the principal subject of inquiry. This is surely a violation of the elementary principles of the law relating to hearsay evidence, and cannot by any stretch of imagination or nicety of reasoning be brought within any of the exceptions relating thereto. The offer should have been rejected and the testimony excluded. For this reason the judgment must be, as it is hereby, reversed and a new venire awarded.