Hancock v. Luke , 52 Utah 142 ( 1918 )

CORPMAN, J.

This was an action brought in the district court of Salt Lake County by the plaintiff for the rescission of a contract entered into between him and the defendants. The cause was before this court on a former appeal involving the sufficiency of the pleadings. Then a judgment had been awarded the plaintiff on his motion for a judgment on the pleadings. A reversal of that judgment was had by a divided court, and the cause was remanded to the trial court, with directions to permit the defendants to amend their answer, and also permit the plaintiff to amend his complaint, if so advised, and then proceed to try the case on its merits. 46 Utah, 26, 148 Pac. 452.

As the case is now presented on the record offered, it is alleged in the complaint that the plaintiff and defendants, on or about the 12th day of December, 1908, entered into a written contract by the terms of which defendants agreed to sell, and the plaintiff agreed to purchase from the defendants, five shares of the capital stock of the Merchants’ Protective Association, a corporation, for the sum of $2,500, in pursuance of which the plaintiff purchased of the defendants five shares of said stock and paid the defendants therefor said purchase price; that said contract further provided that the plaintiff should be employed for an indefinite period of time by the said corporation at a fixed salary, the defendants assuming to act for and representing said corporation in the making of said contract; that the plaintiff entered upon said employment on or about the 12th day of December, 1908, and continued therein until about the 1st day of January, 1913, during which time plaintiff received the monthly salary in said contract provided. It is further alleged that at the time the contract was entered into, and as an inducement thereto, defendants falsely and fraudulently stated and represented to the plaintiff that a certain -collection business was owned and being conducted by the said corporation; that the corporation was capitalized for 100 shares of the par value of $1 each, of which the defendants were the owners of 85 shares; that the corporation was in an exceedingly prosperous condition, and that the actual value of said stock, owing to its assets consisting of collectible judgments amounting to $1,000,000, together with a reserve fund of $10,000 in bank, was $500 per share, and that said stock would earn and pay an annual dividend of not less than 12 per cent, on said price of $500 per share; that in purchasing said stock the plaintiff relied upon said representations as being true; that in truth and in fact all of said representations were false; that the said corporation had no assets or business; that said business was conducted by the defendants as individuals in the name of said corporation; that all the earnings of the said business were appropriated by the defendants; that the business was so conducted that neither the corporation nor the defendants had any assets to pay sums due clients which they were owing; that the plaintiff ascertained these facts during the month of June, 1912, and in the month of January, 1913, gave notice to the defendants of his intention and desire to repudiate and rescind the contract entered into with the defendants, and made demand that they forthwith return to him the $2,500 paid by him for the stock, which defendants wholly failed and refused to do. Plaintiff prayed judgment against the defendants for cancellation of the contract and for the sum of $2,500, with interest and costs of suit.

The amended answer of the defendants admitted the entering into of a contract between plaintiff and the defendants, whereby the defendants sold to the plaintiff five shares of .stock of the Merchants’ Protective Association, and the plaintiff’s employment at a stipulated monthly salary; denied all fraud and misrepresentation set forth in the complaint, and affirmatively alleged that at the time of the execution of the contract the plaintiff well knew that an agreement had been entered into between the defendant Francis G-. Luke and the Merchants ’ Protective Association whereby the said defendant was entitled to all the earnings, profits, and income of the said corporation, including its portion of any and all judgments owned or controlled by it, and that the plaintiff had full knowledge of the true value of said stock. The answer further affirmatively alleged that since the incorporation of the Merchants’ Protective Association the defendants have been the owners of more than 85 per cent, of its capital stock, which was of the small or nominal value of $1 per share, and the defendant Franeis G-. Luke, since said incorporation, had an agreement with the said corporation whereby he was entitled to its entire income, he paying all expenses of carrying on the business, including salaries of employees; that during said time the said corporation, and particularly since 1901, had carried on a lucrative and well-established law and collection business at Salt Lake City, due solely to the efforts and money invested by the defendant Francis G. Luke, and the defendants received anually large sums of money and profits therefrom; that during the year 1908 the plaintiff, being an attorney without experience and with restricted opportunities, was desirous of engaging his services with said eorporation because of the opportunities it afforded for training and experience, and the defendants being willing to employ the plaintiff in the capacity of an attorney, but intending and desiring that the plaintiff should not be at liberty to quit said service at will, and as a condition of such employment, and particularly as an earnest that he would remain in their employ, required of plaintiff that he purchase five shares of the stock of said corporation for $2,500, and that plaintiff engage in said service for at least ten years, during which time defendants agreed to employ the plaintiff as an attorney and pay him a monthly salary with interest on said purchase price of the stock during the continuance of the agreement; that the defendants performed all the conditions of said contract on their part by paying to plaintiff during the four years he remained in said service interest in excess of statutory and reasonable rates on plaintiff’s said investment, and a salary greatly in excess of the reasonable value of plaintiff’s services, with the expectation and upon plaintiff’s promise that he would perform the conditions of said contract and remain in the employment of the said corporation for the full term of ten years, and that after plaintiff had become proficient in conducting said business of collecting and litigation the defendants would thereby be recompensed for the losses sustained by them by payment to plaintiff in the early years of his employment under said contract in excess of the reasonable value of his services. The answer further affirmatively alleged that the Merchants’ Protective Association was organized for the purpose of doing a general collection business, and its business entailed a large amount of litigation and numerous suits at law, and during the times mentioned was largely engaged in the business of practicing law; that the plaintiff was, at the time of making said contract, an attorney at law admitted to practice in the courts of the state of Utah, engaged his services as such under the said contract, and that the contract so entered into between the plaintiff and the defendants was against public policy, unlawful, and void. A copy of the contract was attached to and made a part of defendants ’ answer, and is as follows:

Agreement between Francis G. Lube and James A. Luke, parties of the first part, and George B. Hancock, of the second part, witnesseth; The parties of the first part, in consideration of the payment of two thousand five hundred ($2,500) as follows: Nine hundred dollars ($900) cash on December twelfth, 1908, six hundred dollars within thirty days thereafter, five hundred dollars on or before one year after said date, the six hundred dollar payment and the two five hundred dollar payments to be represented by notes of even date hereof and secured by the five shares of stock mentioned hereinafter; and the employment of the party of the second part, as hereinafter set forth — hereby agree to sell to the party of the second part five shares of the capital stock of the Merchants’ Protective Association Corporation, being five one-hundredths of the total capitalization, and to guarantee the profit thereon as follows:

“1st. The parties'of the first part hereby guarantee to the party of the second part 12 per cent, per annum upon the amount paid for said stock (in lieu of dividends, said corporation paying no dividends) so long as the said party shall remain in the employ of the Merchants’ Protective Association, and in addition guarantee the party of the second part salary during said employment as follows: One hundred dollars per month during the first three months, one hundred twenty-five per month for the next three months; and if the services of the party of the second part are what we hope and expect them to be, the salary will be one hundred fifty dollars per month after the first six months of said employment.

“2d. Should said employment cease through incapacity of the second party, or be terminated by his death, in lieu of the guarantee above given the parties of the first part guarantee to the second party, his heirs, executors, or administrators, eight per cent, per annum upon the amount paid for said stock.

“3d. And the party of the second part hereby agrees during the existence of said employment to work for, and under the direction of, the first parties as attorney at law, and render his best services for the corporation above named; said party of the second part to turn in to said corporation all law business that he now has, and all law business that may come to him hereafter, and is to have one-half of the net profits of all business that -he turns in now. The salary and the guarantee as above set forth to be full compensation for all services rendered and all business that may be turned in to the Merchants’ Protective Association hereafter. The salary and compensation, above referred to, to be increased by said corporation from time to time as the increased net profits of the association justifieth, but said salary is not expected to exceed two hundred fifty dollars per month.

4th. The parties of the first part agree that at the expiration of ten years, should the party of the second part want to sell out, that the parties of the first part will purchase back from him the stock which he originally bought, and pay him one-half of what he paid for it, or pay the party of the second part a salary of two hundred fifty dollars per month from that time on.”

The trial was to the court without a jury. Judgment was rendered dismissing the plaintiff’s complaint and awarding costs to the defendants. Plaintiff appeals.

On appeal plaintiff assails the findings of fact, conclusions of law, and judgment on the grounds that the same are contrary to the evidence and against law, and the findings and conclusions insufficient to support the judgment. It is also contended the trial court erred in refusing to make findings of fact upon all the material issues raised by the pleadings.

The plaintiff, in the presentation of the case to the court, in his brief makes this statement, predicated on the allegations of his complaint:

“Plaintiff brought this action against the defendants, alleging that on or about the 12th day of December, 1908, at Salt Lake City, Utah, plaintiff and defendants entered into an agreement whereby the defendants sold to the plaintiff five shares of capital stock of the Merchants’ Protective Association for the sum of twenty-five hundred dollars ($2,500.00), which was paid; that at the time of sale it was further agreed that the plaintiff should be employed for an indefinite period for the Merchants’ Protective Association at an agreed monthly salary, and that in accordance with said agreement the plaintiff entered into the employment of the Merchants’ Protective Association, and remained in their employ until the 1st day of January, 1913, and received a monthly salary according to the terms of said contract.”

There is no dispute between the parties as to the contract having been entered into between them, nor that the plaintiff continued in the employ of the Merchants ’ Protective Association from December 12, 1908, until January 12, 1913, and that during said period of employment the plaintiff was paid for his services by the defendants as salary a total of $7,318.27, and that in addition thereto the plaintiff received 12 per cent, per annum during said time on the $2,500 paid by him for the five shares of the capital stock of said association. The plaintiff complains, however, that there were false and fraudulent representations made to him by the defendants in the sale of the said shares of stock; that the defendants represented to him that the association had unsettled business in its possession and had claims and judgments on hand for collection amounting to more than $1,000,000, and that the actual value of the stock was more than $500 per share, the price paid for it by the plaintiff, when in truth and in fact the stock was practically valueless. The testimony adduced at the trial shows that at the time the contract was entered into between the parties, and for many years prior thereto, the defendant Francis G-. Luke, by an arrangement with the association, received all its profits and the income on the condition that he paid the expenses and liabilities of the association, including salaries of its employees. Under this arrangement with the association the defendant Francis G. Luke, after the plaintiff and the defendants entered into the contract in question, continued to receive all the profits and income of the association during the period of time the plaintiff was rendering his services under the contract. And the record shows that under said arrangement the defendant Francis G-. Luke drew from the association, covering the period of plaintiff’s employment, approximately $10,000 per annum, and that he paid the salaries and running expenses of the association. The record, therefore, affords very convincing proof that had it not been for this contract or arrangement between the defendant Francis G-. Luke and the association the stock in question would have been of the value plaintiff contends defendants represented it to him to be worth at the time the contract of sale and employment was entered into between the parties and that the stock would have earned for the plaintiff substantial dividends. But under said arrangement no dividends were paid upon the stock of the corporation, and the plaintiff received no profits on his investment in the five shares of stock other than the 12 per cent, per annum paid to him by the defendants during the time plaintiff remained in the employment of the association. It further appears from the record that the defendants are the owners of approximately 85 per cent, of the capital stock of the association; that the arrangement of Francis G. Luke with the association to draw all its profits and income will continue, in all probability, at the pleasure of the defendants. The plaintiff testified that he had no knowledge of this arrangement before or at the time of entering into the contract with the defendants, nor until after he had discontinued his services for the association, and now contends that he should be permitted to rescind the contract entered into between himself and the defendants, and recover the price paid by him to the defendants under the contract for the stock.

The judgment of the trial court is predicated on the findings of fact complained of by plaintiff, to the effect that there was no fraud or misrepresentation on the part of the defendants in making the contract of sale and employment entered into between the parties; that for a long time prior to entering into the contract a lucrative law and collection business had been built up by the defendants in the name of the association controlled and conducted by the defendants; that the business of the association entailed a large amount of litigation and numerous lawsuits, necessitating the continuous employment of experienced attorneys at law, who, by continuous employment, became familiar with the said business and efficient in conducting its litigation; that the plaintiff at the time of entering into the said contract with the defendants was an attorney at law without practical experience in the said business, and, for the purpose of obtaining permanent employment, entered into the agreement with the defendants so that they might train and educate him and render him useful to them in the said business; that the plaintiff had all the benefits of said contract and all the wages and interest specified therein from December 12, 1908, to January 12,1913, and that during said time defendants performed all the conditions of said contract on their part; that the plaintiff continued in said services after he first learned, as he claims, that certain representations alleged by him to have been falsely made by defendants were false and that he had thereby been deceived in entering into the contract with defendants, from June, 1912, up to January, 1913, and continued to receive his monthly salary and interest on the $2,500 paid by him for his stock in the association as in the agreement provided, without notifying the defendants or in any way indicating an intention or desire to rescind or repudiate the contract, and that on January 12, 1913, plaintiff left the services of the association without the consent of defendants and refused to longer continue his services; that the plaintiff was informed by defendants and knew of the arrangement between the defendant Francis G. Luke and the association, whereby Francis G. Luke was to draw all the profits and income of the association, and that the stock purchased by plaintiff would not draw any dividends, and that neither of the defendants made any representations to the contrary, and that the plaintiff entered into the contract with defendants without relying on any of the alleged fraudulent representations by defendants in any way.

After very carefully perusing the transcript in this case the writer is convinced that the findings of the trial court are amply supported by the evidence adduced. It is true there is much conflict in the testimony given by the plaintiff and the defendant Francis G. Luke as to what was said and the representations made by the defendant Francis G. Luke (the defendant James A. Luke not participating) concerning the value of the stock and the condition of the business and assets of the association, and what plaintiff was to expect under the terms of the contract of sale of stock and employment of plaintiff, but it would serve no purpose here to discuss the testimony, documentary or otherwise. That this court will not reverse the findings of the trial court unless they are clearly in conflict with the evidence, has been so repeatedly decided and so universally adhered to in former decisions that citations would be superfluous. The documentary evidence alone affords much substantial and convincing proof that the plaintiff upon entering into the contract with the defendants had knowledge that the stock purchased by him, independent of his purpose of securing employment with the association and drawing a substantial salary and 12 per cent, per annum on his money invested in the purchase of the stock, would be practically valueless, as testified to by the defendant Francis G-. Luke, until at least the defendant Francis G. Luke might consent to the business of the association being conducted along other lines than it was then being conducted.

As a matter of law it is contended by plaintiff that the employment feature of the contract in question is void for lack of mutuality. Numerous authorities are cited in support of this contention, among them the case of Price v. Loan & Trust Co., 35 Utah, 379, 100 Pac. 677, 19 Ann. Cas. 589, wherein it was held by this court that a contract of hiring not binding an attorney for a specified period lacked the element of mutuality of obligation and could be terminated at any time at the will of either party. In the case at bar it will be seen that the contract in question lacks the same element of mutuality, and therefore the contract was terminable by either party at will. The doctrine laid down in Price v. Loan & Trust Co., supra, and other cases cited in plaintiff’s brief, here applies as to the right of either party to terminate the contract at will. How;ever, the rule announced in these authorities, and by the courts generally, is to the effect that where a contract is in its inception lacking in the element of mutuality, after performance it becomes binding. 9 Cyc. 329; Boles v. Sachs, 37 Minn. 315, 33 N. W. 862; Pennsylvania Co. v. Dolan, 6 Ind. App, 109, 32 N. E. 802, 151 Am. St. Rep. 289; McLees v. Hall, 10 Wend. (N. Y.) 426; Emmett v. Reed, 8 N. Y. 312.

It necessarily follows that the value of the plaintiff’s services rendered under the contract was not material, and the failure of the trial court to make a finding as to the reasonable value thereof was not error.

For over four years, and until the plaintiff discontinued his services under the contract in question, the defendants paid and the plaintiff received a monthly salary for his services without any protest or complaint on the part of either that it was not just and adequate payment for the services rendered, and, therefore, under the pleadings and testimony in the case, for the trial court to have made a finding that the services of the plaintiff were worth more or less than that fixed and determined by the mutual consent and arrangement of the parties themselves would have been, in my opinion, not only immaterial, but a senseless thing for the trial court to do.

It is next seriously contended by the plaintiff that with respect to the sale feature of the contract jn question, whereby the plaintiff purchased five shares of the capital stock of the association at $500 per share, the same is void, owing to gross inadequacy of the value of the stock and lack of consideration for the price paid therefor by plaintiff.

I have heretofore pointed out that the finding of the trial court that there was no procurement by the defendants of the contract with plaintiff through fraud or misrepresentation on the part of the defendants is amply sustained by the evidence adduced at the trial, and we cannot therefore revise the trial court’s finding in that regard. As I view the case, a further finding of the trial court as to the value of the stock purchased by the plaintiff from the defendants would have been, in the absence of fraud, misrepresentation, or some undue advantage taken, an immaterial finding, and would not have in any manner legally affected the conclusions of law and judgment arrived at by the court below. Let us assume, for the sake of argument, that the value of the stock purchased by the plaintiff was practically nothing as compared with the price paid for it. Did the plaintiff not get the very stock he bargained for? Mere inadequacy of consideration, unattended with fraud, misrepresentation, or unfair advantage, would not permit the rescinding of the contract, and offer plaintiff legal grounds for the recovery of the purchase price. Upton v. Tribilock, 91 U. S. 45, 23 L. Ed. 203; Watts v. Stevenson, 165 Mass. 518, 43 N. E. 497; Hunting v. Downer, 151 Mass. 275, 23 N. E. 832; Guyer v. Warren, 175 Ill. 328, 51 N. E. 580.

In substance, the case at bar presents this statement of facts: The defendants owned 85 per cent, of the .stock of a corporation engaged in a law and collection business. It was managed and controlled by the defendants, and it paid no dividends by reason of a contract with the corporation whereby the defendant Francis G. Luke received all the profits and income from its business. The business conducted required the services of an attorney learned and experienced in its line of work. The defendants offered to sell' the plaintiff five shares of their stock for $2,500, on the condition that plaintiff would serve the association as an attorney at an agreed salary, and in addition thereto would pay the plaintiff 12 per cent, per annum on his investment in lieu of dividends so long as he remained in the service, until the expiration of ten years, when, should the plaintiff desire to sell his stock, the defendants would pay to plaintiff one-half of the price paid for it, or pay the plaintiff from that time indefinitely a salary of $250 per month. The plaintiff accepted the defendants’ offer, paid for the stock, and entered upon the service. The contract was complied with by defendants in every detail; the plaintiff received the stipulated interest on the price paid for the stock, and his salary as agreed upon and stipulated for during a period of over four years, when he, at his own will, discontinued his employment and commenced this action to rescind the contract with the defendants and to recover the price paid for the stock. True, the plaintiff testified that the defendants grossly misrepresented to him the amount and value of the resources of the association, and concealed from him the fact that the defendant Francis G. Luke was to have the profits and income therefrom, and that he did not discover the alleged deception of the defendants until the month of June, 1912; but the defendants testified to the contrary, and these issues of fact were found against the plaintiff’s contention by the trial court. But even then, and for sis months thereafter, plaintiff admits he knew of all the alleged fraud and deceptions practiced upon him by the defendants, yet he continued to receive and accept the benefits of his agreement with defendants for over six months without murmur or protest on his part. Again, the trial court finds, and we think justly, that he may not do that.

The writer of this opinion is convinced, that a very careful reading of the entire record in this action, that the findings of fact and the judgment of the trial court are supported not only by the great weight of the testimony, but that they are in full accord with the plain principles of common justice and fair dealing, and in keeping with every rule of law and equity adhered to and observed by the courts.

The plaintiff based his action for the recovery of $2,500 paid to the defendants for five shares of stock of the association on the grounds of fraud, misrepresentation, and inadequacy of consideration. As to all of these grounds, and more especially the alleged fraud and misrepresentation, it is well to consider not only the conflicting oral testimony of the respective parties given at the trial, but also the indisputable testimony, written and in documentary form, bearing on the question of knowledge, good faith, and fair dealing of the parties.

It first appears that in 1908 the defendants caused to be published in a Salt Lake City daily newspaper the following advertisement, to wit:

“Men Wanted, with two or three thousand dollars, to learn to help us in our collection business. The right man can earn a good salary with guaranteed profits. Must be ready and willing to work. 32,000 clients. Largest collection business in the world. Here is an opportunity for a bright young man. ’ ’

To the above the plaintiff replied by letter to defendants, September 25, 1908, as follows:

“In your advertisement of September 23d, I notice that you desire a man to learn collecting in your firm. Will say that I am looking for a position in a law firm in S. L., and would be pleased to take the matter up. Will say, by way of introduction, that I have degree LL.B. from University of Michigan, and have had one year’s practice of law here. Also, prior to college work, I was clerk of district court three years. Have had experience in collecting. Can furnish any no. of references. Please let me know your terms.”

Defendants replied September 29, 1908:

“As our advertisement stated, we want a party with $3,000. The reason we insist that he have $3,000 is because we cannot take a man into business and give him the benefit of all that it has taken us fifteen or sixteen years to build up, unless we know he is going to stay. * * * We guarantee 12% on the investment, and we will increase his salary in proportion to the increase of the business year by year, limiting him, however, to a salary not exceeding $250.00 per month, and guaranteeing at the expiration of ten years, should he want to sell out, that we will purchase back from him the stock he originally bought and pay him half what he paid for it. * * * The stock of the association is sold at $500 per share. * * * We sell on the basis of $50,000 valuation. The guarantee of 12% per annum on the investment is made by myself and brother. * * * The corporation does not pay dividends. The 12% is a guarantee in lieu of dividends. We expect the future to be accompanied by a much larger business than we have had in the past. * # # The time is fast approaching when the business is going to be entirely too large for us two to attend to it properly, and if we expect to perpetuate it and made it a business of commercial prominence throughout the United States, we must have help. We cannot take men in and educate them as employees unless they are interested. * * * If we should take a man in and educate him and give him the acquaintanceship of 2 or 3,000 of our clients it would be an excellent start for him and he could immediately branch off for himself and all our labor would be lost. * * *”

The plaintiff wrote the defendants November 3, 1908:

“I have been home for about ten days and have been making preparations to accept your offer and come to Salt Lake about the 1st of December. * * *

“I have thought the matter over carefully and am satisfied that it is a good thing and will develop into a good proposition in a few years at least. # * *”

Plaintiff again wrote defendants November 27, 1908 .-

“I assure you, Mr. Luke, I would like to get in your firm, and I believe it is a good thing, but it may be that the money tendered will be too small to justify you in taking me in. But if you want me tied, of course you would have me in that position. * #

The foregoing communications were had between the parties preliminary to entering into the contract sought to be rescinded by plaintiff. They were admitted in testimony by the trial court, and state the undisputed material facts leading up to the contractual relations between the plaintiff and defendants. The italicizing is my own.

The testimony of the plaintiff and the defendants is in conflict as to whether or not the plaintiff was told by the defendants before the contract was entered into concerning the arrangement or agreement between the association and the defendants whereby the defendants were to have all the profits of the association. The defendant Francis G. Luke testified that full explanation was made to plaintiff concerning that matter before the contract was executed. The plaintiff denied that anything was said.

Regarding the $2,500 paid by plaintiff to the defendants for .the five shares 'of stock, the defendant Francis G. Luke testified as follows:

“Q. And was there anything said about his (meaning plaintiff) getting any part- of this twenty-five hundred dollars back in case he should quit before the time? A. Yes. In case he should quit before the time he would not get any of it back. He called my attention to that and I said: ‘If you want to quit, don’t come in. You must satisfy yourself now. That is what you are up here investigating. If you think you want to quit, don’t come in. We don’t want to bother training anybody or wasting time. If yon simply want to come in and learn what yon can learn and then leave ns, of course if yon leave us you won’t get your money, all yon would get would be that stock, and yon would get nothing on that until such time as the corporation paid dividends.’ ”

As I have pointed out, for four years and nine months after the plaintiff had entered into contractual relations with the defendants he held his stock, received in lieu of dividends thereon the 12 per cent, guaranty made by the defendants, received his stipulated salary, and had to do in the capacity of an attorney with the business of the association in and out of court. During this long period the business of the association, with which he was of necessity familiar, yielded large profits as it had been doing for years before — the record shows from 1901 to 1912, inclusive, $101,734.64. During the forty-nine months of his service he was in a position to know, and, in my judgment, he cannot now with any consistency say that he was not familiar with the disposition being made of the earnings of the association in which he himself shared in the way of salary and the 12 per cent, paid as a guaranty in lieu of a dividend on his stock. True, the stock of the association had no market value and was not offered nor sold upon the market to others; but it did have a material value in the hands of the defendants and the plaintiff, for their holding it offered-them all remuneration, employment, and, as to the plaintiff, a much larger return on his investment in it than is usually had in that class of investments, so long as he chose to remain in the employ of the association. That his severance was a matter of his own free will and choosing he himself must admit He had absolutely no cause whatever for severing his relations except to subserve his own personal interests. If the affairs of the association and its management were at all questionable, from the very necessity of things he had been and was at all times an actual and benefited participant. Further, the plaintiff cannot escape the fact that for a very long period after he discovered the alleged fraud and deceit practiced upon him by the defendants, of which he now so bitterly complains, he continued his fidelity to the alleged wrongful machinations of the defendants, reaped the benefits in common with them, and, as his only apology for the faith that was in him, before finally retiring from the business, in a letter to defendants made the following somewhat incongruous statement:

“I do not want to cause any bad feelings any place, and would like to make a peaceable change so that no one will be injured. I know that we have had a hard pull the last year, and I have even hated to ask for my salary because the firm was so hard pressed. I would like to carry out my plans and form a partnership with Barnes and open up offices in this building, and go on taking care of the business of the firm on a fee basis, with the right, of course, to have our own clients and business. My hope is to make such an arrangement so that we will be satisfied. I believe it would be more satisfactory. The firm could have Mathison, or some other attorney, in the office, and give me the work by piece, and pay for what I done, and I would still retain my interest in the business and would give you good work. If this does not appeal to you, maybe you can suggest something that suits us all. I have kind feelings toward you, absolute confidence and respect, but I am determined to place myself on a more independent basis, even if it is necessary for me to leave the institution altogether. Talk with me about it. G-. B. H. ”

The contractual relations of the parties to this action with respect to each other was a somewhat peculiar one — their relations with the association equally so. While the legal right to sever and discontinue the relationships remained at the will of either party, I am not familiar with any rule of law or equity that would permit the plaintiff to recover from the defendants all or any part of the $2,500 for which the defendants sold and the plaintiff purchased five shares of stock. That part of the contract was executed when the defendants delivered the stock to the plaintiff and the plaintiff paid the defendants the agreed price therefor.

Nor do I think common justice or fair dealing between man and man would sanction or permit of the plaintiff’s recovery from the defendants the price paid for the stock under the facts and circumstances disclosed by the record in this case. That the plaintiff fully considered and understood the purpose of the defendants in requiring him to purchase the five shares of stock as a prerequisite and necessary condition of his employment is made plain by the written communications between the parties before the contract was executed by the plaintiff. His legal training, his previous experience with the courts, and actual though limited practice as an attorney, must certainly be held to have sufficiently qualified him to appreciate the character of the business in which he was about to engage with the defendants, and that they could ill afford to engage his services without requiring him to purchase and pay for the stock as an evidence of good faith. That the defendants have delivered to the plaintiff just exactly what he bargained for the record here is absolutely conclusive. The plaintiff has kept and held the stock and partaken of the benefits of his transaction with the defendants for nearly five years. He has discontinued his services under the contract for the furtherance of his 'personal interests alone. He is now to engage in the same kind of business with another. The law permits him to do that, but in all good conscience will law or equity permit him at the same time to take with him not only the benefits of his relationship with the defendants under contract, but the price he was in the beginning so anxious and willing to pay in order that he might be placed in a position to enjoy the opportunities and reap the benefits the contract so long afforded him ? As to that feature of his contract the same, in my judgment, must be held to have been fully executed when he purchased and paid for the five shares of stock, and therefore I cannot escape the conclusion that the judgment of the trial court was right and should be affirmed.

In view, however, that a majority of this court has arrived at a conclusion that the findings and judgment of the district court should be modified in accordance with the views expressed by them, the findings of fact and conclusions of law of the district court are hereby modified, and judgment is ordered to be entered as stated in the following opinion of the Chief Justice.

FEICK, C. J.

While the majority of the court agrees in the statement.of facts made by Mr. Justice COEFMAN in the foregoing opinion, and for the purposes of this opinion adopts the same, yet we do not concur in the reasoning of nor in the conclusions reached by him, and therefore do not concur in the affirmance of the judgment. On the contrary, the majority of the court is of the opinion that the findings of fact, conclusions of law, and judgment should be modified as herein stated for the following reasons:

As appears from the statement of Mr. Justice COEFMAN, the action was commenced by the plaintiff to rescind the contract which is set out in full in the foregoing opinion and to sever the relations thereby created between him and the ' defendants. By reference to the complaint, the substance 1 of which is stated in the opinion of Mr. Justice COEF-MAN, it will appear that the plaintiff fully recognized the underlying principle which controls in such an action, namely, that he who seeks equity must do equity. In conformity with that principle he, therefore, offered to return the five shares of stock and in that way attempted to restore the status quo. When doing that, he, however, entirely overlooked or ignored the very tenor and purpose of the contract from which he sought to be relieved. The contract was not one merely for the purchase and sale of the five shares of stock mentioned therein, but it contained several other important features. Indeed, a mere cursory reading thereof convinces the writer that the purchase of the five shares of stock was a mere incident, and that the principal purpose of the contract was to establish the relationship of the parties as therein stated. Everything that is said in the contract, and all that was done by either of the parties pursuant thereto, clearly shows that the five shares of stock merely figured in the transaction as a basis for the payment of the $2,500 by plaintiff to the defendants. It is also clear that, in truth and in fact, the payment of that sum of money was not intended as consideration for the five shares of stock, but as an inducement for the plaintiff to continue the relationship created by the contract for the period contemplated, though not expressly stated therein, to wit, ten years.

In view, however, that the period of time that the relationship should continue was not stated in the contract, neither party was bound to continue the relationship for any definite period, but could terminate the same at any 2 time. This is also the conclusion reached by Mr. Justice CORFMAN. The plaintiff also insists that such is the case, while, as appears from Mr. Justice CORFMAN’S opinion, the defendants in their answer aver that the contract for some reason was against public policy and therefore void. Mr. Justice CORFMAN, however, arrives at the conclusion that the portion of the contract relating to the purchase and sale of the five shares of stock was fully executed and for that reason he refuses plaintiff any relief. We are all agreed, however, that the contract, so far as it related to the employment of plaintiff, was partly executed, and, to the extent that it was executed, both parties have received the benefits provided for therein.

As before stated, it is palpably clear, however, that the thing which induced the parties to enter into the contract was that the plaintiff should be employed as attorney in defendants’ collection business for a period of ten years, 3 at the salary specified in the contract, and upon the conditions therein stated, and that as an inducement to plaintiff to continue in that employment he was to take the five shares of stock and pay to the defendants the $2,500. Each party, therefore, obtained something from the other upon the implied understanding that the relationship created by the contract should continue for a certain period of time. It was for that reason that it was agreed that plaintiff should be paid and was paid 12 per cent, interest annually on the $2,500 and the defendants received that sum of money from him. The facts, therefore, that the parties failed to enter into a contract which was legally enforceable respecting the relationship for the full period of time contemplated, and that the contract has only been partly performed, are sufficient reason why, in equity and good conscience, neither of them should retain the fruits of the contract, which could only rightfully he demanded in case of full performance. The relationship which was to continue ten years being severed before one-half of that period had elapsed, both parties should be required to do equity, and neither one should he permitted to obtain an undue advantage over the other in retaining the fruits of the contract, which were only to be received in case it was fully performed as contemplated by the parties. The mere fact that neither party can in law enforce the contract or sue to recover damages for a breach thereof is no reason why either one in equity should receive the fruits as though the contract had been fully performed. To allow that would be equivalent to allowing damages for a breach of the contract. So far as the contract of employment was executed, plaintiff has received full compensation by being paid his salary, and the defendants also have received full consideration by receiving the services rendered them by the plaintiff. It may be observed, however, that if the plaintiff had continued the relationship for the full period of ten years, and had rendered services to the defendants for that length of time, if he then desired to discontinue the relationship he could return the five shares of stock and receive the sum of $1,250 from the defendants therefor. Under the judgment as it now stands, the defendants are left in a much better position than they would have been if the contract of employment had been fully performed as contemplated by the parties. The judgment proposed by Mr. Justice CORFMAN is equivalent to enforcing the contract against the plaintiff and excusing the defendants from doing equity. The view that the contract was not enforceable and was not fully performed should not operate to permit the defendants to reap the fruits as though it had been fully performed. Under the proposed judgment the defendants are permitted to retain the full $2,500, which under the circumstances of the case, in my judgment, is clearly and manifestly inequitable and unjust.

Upon the other hand, the plaintiff not only seeks to retain the full amount of the salary paid him, but also demands that defendants pay him back the $2,500, with 4 legal interest from the time they received it. To award that to him would, in my judgment, be equally unjust and unfair. As we have seen, he paid that sum in part consideration of being paid a larger salary and of being permitted to enter upon the employment for a definite period of ten years, which, in the nature of things, must have been of material benefit to him. In view of all the circumstances, therefore, the only question is what judgment should be entered in this case.

The defendants now have in their possession the $2,500 which the plaintiff paid them in entering upon the employment as attorney for them. As we have seen, the plaintiff paid the $2,500 voluntarily and for the purposes before stated, and the defendants, therefore, had the legal right thereto, at least while the plaintiff continued in the employment and discharged the duties as an attorney for them, and until he tendered back the stock and demanded repayment of the money, which he did on the 13th day of January, 1913. From the time the defendants received said $2,500 until the 13th day of January aforesaid they had, however, paid the plaintiff the 12 per cent, interest mentioned in the contract, and which it is clear was agreed to be paid in contemplation that plaintiff should remain in defendants’ employment for the full period of ten years. The amount so paid amounted to the sum of $1,017.22. The plaintiff would not have been paid that amount, or any part thereof, if he had indicated that he would not continue in the employment for the full period contemplated by the parties. In equity and good conscience, the plaintiff should not be permitted to retain said! sum of $1,017.22, and the defendants should be given credit therefor on said $2,500. If that be done, the defendants owe the plaintiff the sum of $1,482.78 on said $2,500, with legal interest on the latter sum from the 13th day of January, 1913. The defendants are entitled to the return of the five shares of stock. Any other result will permit either one or the other of the parties to enjoy the fruits of the contract as though it had been fully performed, when in fact it was only partially performed, and was unenforceable not because of the wrongful acts of either, but by reason of the inadvertence of both. The parties being in a court of conscience, neither should be permitted to gain an advantage over the other.

In my judgment the foregoing conclusions are supported by all the authorities. Here each party obtained something from the other in contemplation that a certain business relationship should continue for a specific length of time under certain conditions. The relationship was, however, severed before the time contemplated had elapsed, and before all that was contemplated by the parties was fulfilled, and the parties are now in a court of equity, seeking to adjust the differences between them which grew out of the relationship before stated. Being in a court of equity, they must do equity. The maxim applies regardless of the nature of the controversy or of the reasons why the parties have severed their relationship. In 9 C. J, 1209, in referring to the application of the rule, it is said:

"And the rule is the same in respect to both real and personal estate, and applies irrespective of the grounds on which cancellation is sought. Thus, it applies to fraud, mistake, duress, nonperformance, illegality, or want of consideration.”

Regardless of the cause why a contract is not fully performed as contemplated when it was entered into, the maxim applies, and neither party will be permitted to retain anything which would be inequitable and unjust under the circumstances.

The judgment, therefore, is reversed, and the cause is remanded to the district court of Salt Lake County, with directions to modify the findings of fact and conclusions of law in accordance with the views herein expressed, and to enter judgment as herein directed. Appellant to recover costs.

THURMAN, J.

Three opinions in this case have already been written and filed by my Associates. There is scarcely room for another; therefore this effusion need not 'be dignified as an opinion. The case is sui generis. There has never been another like it in the annals of litigation. In all human probability there will never be another while time endures. Therefore the haunting dread of a dangerous precedent that may come back to plague us has no place in the case at bar. If any opinion written in this case should ever be cited as authority in any other it can easily be distinguished. The sole duty, therefore, developing upon the court is not to attempt to lay down a rule for future cases, but to dispose of the case before the court on its own peculiar facts, without reference to any thing that may happen hereafter.

While not agreeing with Mr. Justice COBFMAN entirely in his statement of the facts, nor with the CHIEF JUSTICE in so far as he agrees with Mr. Justice COBFMAN, still I am of the opinion the CHIEF JUSTICE has arrived at the only equitable solution of the problem. Under the circumstances, Luke should be credited with whatever sum Hancock received as interest on the $2,500 down to the time he severed his relation and made demand for the money, and Hancock is entitled to judgment for the remainder and legal interest thereon from the date of the demand, together with Ms costs.