Kuker v. . Snow

CoNKOR, J.,

after stating the facts: The appeal presents the question whether, in the light of the pleadings, his Honor was correct in rendering the judgment set out in the. record. For the purpose of disposing of this question, the allegations ih. the answers must be taken as true. So taken, they present á peculiar series of contracts on the part of defendant Snow. He enters into the contract with Newsome Bros, on 8 January, 1907, giving them an option on the stock, at par, .for three years. On 21 February, 1907, he enters into a contract with plaintiff, placing the stock in the hands of Mr. Guthrie to sell in six days, “to some party or parties agreeable to Mess. Newsome Bros.” We camiot ignore this limitation upon Guthrie’s power to sell. If nothing else appeared, before plaintiff could enforce a sale he would have to allege and prove that Guthrie had failed or refused to make an effort to make a sale to “parties agreeable to Newsome Bros.” ' The limitation put Guthrie upon notice that, in some way, Newsome Bros, were entitled to be consulted in finding a purchaser or, at least, that the person who purchased .should' be agreeable to them; otherwise the language, in that respect,’ has no significance. If he should disregard the limitation upon his power to sell, he might incur liability either to Newsome Bros, or, if they had a prior right to the stock, to the purchaser. Of course, he could not arbitrarily refuse to act in the premises. It is true that plaintiff alleges that he has demanded of Guthrie to sell the stock, but he does not allege that a sale can be made, in accordance with the terms of the contract, to some person agreeable to Newsome Bros. This, however, is not all .that appears. It is alleged in the answer that Newsome Bros, have the right to purchase the stock, at par, at any .time within throe years, and that plaintiffs had notice of this right and made the contract subject to Newsome Bros.’ option. This allegation is denied by plaintiff. Before any order of sale is made or final judgment rendered, this issue of fact should be settled by the jury.

We forbear discussing the question respecting the right of Newsome Bros, to demand specific performance of the con-, tract with Snow, and to that end to enjoin the sale until the expiration of their option; also whether a purchaser -from Snow or from Guthrie, trustee, would take the stock subject-to Newsome Bros.’ rights. In the light of Snow’s guaranty that the stock shall bring par value when sold, and tliat lie will make good any deficiency to the extent of $3,000, it is difficult to see how he is interested in delaying a sale. In any event, he is liable to plaintiff for $3,000, the only question being whether he can, if he can make good his allegation, postpone the sale for three years, or until Newsome Bros, see fit to close their option either by. taking the stock at par, or surrendering their claim to it. The judgment of his- Honor must be set aside and a new trial had, to the end that the controverted matters may be settled. It is so ordered.

New trial.