Hopkins v. Guardian Trust Co.

OPINION

By LEVINE, J.

If the paper writing entitled “Memorandum of Agreement” were to be studied by its own four corners but one conclusion could be reached. There are mutual obligations entered into by and between the contracting parties. Mr. and Mrs. Griffiths, denominated parties of the first part have purchased for the benefit of Mr. Hopkins, denominated the second party, 570 shares of the stock of The Buckeye Engine Company at $350 per share. Same was placed in the name of The Guardian Savings and Trust Company. The second party (meaning Mr. Hopkins) has the right to pay for the stock and have the same transferred to him or to his order, upon payment to The Guardian Trust Company at the rate of $350 per share with interest, and also on payment of all charges. All dividends paid on account of the shares are to be held by the first parties and by them applied to the payment to be made therefor by the second party. The second party obligates himself:

(a) To save the first party harmless from any and all further obligations on account of the said stock.

(b) To pay interest and all charges due on the same whenever the same shall accrue.

(c) To pay the entire balance due the first parties at any time upon * * * notice of their desire to have such payment made.

It was claimed that this instrument in writing merely amounted to an option permitting Mr. Hopkins to have the stock upon certain payments for same, and that since no time was specified for the exercise of such option and in view of the lapse of time no further claim can be based upon said instrument in writing.

We cannot agree with such claim because of the fact that the second party in addition to other obligations agrees to pay the entire balance due the first parties at any time upon notice of their desire to have such payment made.

The paper writing must be read as a whole and reading it as a whole the mutual obligations of the respective parties are therein set forth and constitute, in our opinion, a sufficient consideration to support the binding effect of these mutual obligations. A binding contract continues in effect until

(1) There was a full performance of the obligation therein set forth.

(2) Until there was a discharge from said obligations by mutual consent.

(3) That the party seeking to enforce the obligations of the contract was guilty of such conduct as to call for the application of the doctrine of estoppel.

We shall proceed to apply this test to the case at bar.

First: Were the obligations of the contract performed?

There is no claim to that effect. Mr. Hopkins at no time called for a transfer of his stock to his name, nor did he offer to pay for same. Mr. and Mrs. Griffiths at no time gave notice to Mr. Hopkins of their desire to have such payment made for said stock. The reason for this state of affairs is quite apparent. This memorandum of agreement entered into between the parties was merely one of 'the instrumentalities resorted to by Mr. Griffiths to effect liquidation of the stock of The Buckeye Engine Company and to enable him to carry out his personal obligation which was to sell the stock of The Buckeye Engine Company to The E. W. Bliss Company.

Second: Was there a mutual discharge of the obligations of this contract by agreement of the parties?

There is no evidence to this effect excepting as may be gathered from the circumstances.

Was the conduct of the parties such-as to invoke the application of the doctrine of estoppel?

There is no direct evidence pointing to inequitable conduct on the part of either of the parties to the contract including Mr. Hopkins, excepting the charge of his failure to exercise reasonable diligence by way of enforcing the benefits accruing to him under the contract.

Addressing ourselves to the binding effect of the contract and upon which this action is predicated, the mere fact that this contract entered into between the parties was a device resorted to by Mr. Griffiths to effect his own purpose and to serve his own ends in bringing about a liquidation of the assets of The Buckeye Engine Company and enabling him to carry out his obligation to The E. W. Bliss Company does not, in our opinion, change the binding effect of this contract. Generally speaking, conversations had by and between contracting parties prior to the execution of a written contract are inadmissible in evidence, as all of the negotiations, conversations and transactions had between the parties prior to the execution of the contract are deemed to be merged in the final understanding reached by them which is evidenced by the paper writing.

It is true that a conversation had between parties to a contract simultaneously with the entering into of the contract to the effect that this writing shall not be binding upon either of them is admissible in evidence and controlling as to the binding-effect of the contract. The evidence, however, does not disclose any such conversation. We, therefore, have before us an instrument in writing obligating the contracting parties to definite duties and obligations under the same. This binding contract continues to be binding unless something occurred subsequent to its execution either by way of express or oral modification, or by the application of the doctrine of estoppel based upon the conduct of the parties. An examination of the record discloses that there was no modification of the contract by .mutual consent. The most that could be said is that Mr. Hopkins acceded to the request of Mr. Griffiths that the final ■ accounting under the agreement of August 16th, 1920, between Griffiths and Hopkins, was to be postponed until all tax matters were settled and until The Buckeye Engine Company got into a position to be finally liquidated.

It will be noticed that the contract furnishing the basis of this action contains nd time limit for performance. Generally speaking, where ño date of performance is set, the law attaches an intention of the parties that the same is to be performed within a reasonable time. This presumed intention, however, is not a conclusive legal principle and will never arise if it is contrary to the manifest intention of the contracting parties. Considering the surrounding circumstances of this case, it becomes apparent that the parties did not intend to set any particular date as the date of final performance under the contract.

Some mention was already made of the transaction between The Bliss Company and Mr. Griffiths. It is well to point out that by this transaction The Bilss Company was called upon to make payments to The Buckeye Engine Company over a period of years, the last and largest of which payment was made in 1925. There was also a period of litigation and extensive negotiations of tax questions between The Buckeye Engine Company and the Government. We believe that the record fairly supports the conclusion that all these extended over a period of many years and were not concluded until July of 1931. It seems, therefore, that time not only was not of the essence of this contract, but it is also clear that no particular time was agreed Upon between the parties as it was their purpose to take all the time needed until the transaction between The Bliss Company and The Buckeye Engine Company was fully consummated. With the exception of the subsequent agreement between Mr. Griffiths and Mr. Hopkins as to extension of time cf settlement, there is nothing in the record tending to show any negotiation concerning any other terms found in the contract.

Much stress has been laid upon the conduct of Mr. Hopkins in not insisting upon a settlement under his contract until many years have elapsed and until after the death of Mr. Griffiths. The inference sought to be drawn from Mr. Hopkins’ conduct is not only to cast doubt upon the circumstances surrounding the entering into the contract, but also upon his veracity and honesty of purpose. As the defense would have it, this court would be required substantially to find that the original contract entered into between the parties was not for the purpose of fixing any rights or obligations under it so far as the contracting parties are concerped, but that it was a mere shell, a mere form without substance, a mere device of Mr. Griffiths to effect a purpose of his own. The court would be required also to find that it was not the intention of the parties that any of them should be held to any obligations or to derive any benefits. Likewise the court would be required to find that the reason Mr. Hopkins waited as long as he did to assert his right^ under the contract was because he did not dare to assert them during the lifetime of Mr. Griffiths, but that as soon as Mr. Griffiths died, Mr. Hopkins then felt it safe to assert himself.

The record is brimful with descriptive matter showing the intimate relationship and close friendship between Mr. Griffiths and Mr. Hopkins. Therein are told a number of instances when Mr. Griffiths rendered financial assistance to Mr. Hopkins by making advances or otherwise.

Should the court agree with the defendants’ contention and make the findings as requested by the defense, it would be the equivalent of saying that the plaintiff is not only guilty of fraud and dishonesty, but also that he is guilty of ghoulish acts seeking to rob the estate of his best friend. This serious indictment is not justified by the evidence adduced.

The plaintiff is well known in this community and has occupied the highest position of trust within the gift of the people. This court is unwilling to cast such a serious aspersion upon his character without clear and convincing evidence supporting the accusation.

When one analyzes the various contentions as to the basic facts of this case, the conclusion must be reached that there .is hardly any dispute concerning the facts. The dispute occurs only as to the purpose of these transactions had between Mr! Hopkins and Mr. Griffiths, the defense maintaining that it was not the intention of the parties to effect binding obligations, nor to afford any benefits to either of the contracting parties. The plaintiff maintains that while it is true that the contract entered into between the parties was merely a device of Mr. Griffiths to serve his own purpose by way of effecting a liquidation of the assets of The Buckeye Engine Company and to enable him to carry out his own personal obligation to The E. W. Bliss Company which was to sell to it the assets of The Buckeye Engine Company, nevertheless it was the purpose of Mr. Griffiths to confer definite benefits upon Mr. Hopkins if any were to accrue.

It is expained by Mr. Hopkins, and there is nothing to controvert the explanation, that Mr. Griffiths in order to acquire seventy-five percent control of The Buckeye Engine Company needed 570 shares of additional stock; that he purchased the same at various times from inactive people who did not know of the agreement between Mr. Griffiths individually and The E. W. Bliss Company for a sale of the assets of The Buckeye Engine Company; that he expressed himself as not being desirous of making a profit on this stock so purchased. According to Mr. Hopkins it was the desire of Mr. Griffiths to give a profit, if any were to accrue, to Mr. Hopkins.

The plaintiff had great confidence in Mr. Griffiths’ business judgment and in consequence was willing to take the gamble or risk entailed by reason of his entering into the obligations of the contract. Had it turned out unfavorably, Mr. Hopkins could have been held to tjie fullest extent of his obligation under the contract. He assumed definite risks and is therefore entitled co whatever benefits accrue' to him, -if there are any.

The claim that the beneficial interest in the stock already vested in the beneficiaries of the trust prior to the execution and delivery of the plaintiff’s contract, subject to be divested in case the donor revoked the trust as to the stock during his lifetime, is not in our opinion tenable. The trust agreement did not deprive Mr. Griffiths of the power of alienation. He could assign, transfer or bargain concerning same just as if there were no trust created. The effect of the trust agreement between Mr. Griffiths and The Guardian Trust Company was in effect a mere change in the form of ownership. Instead of being the legal and equitable owner of the trust funds and assets, by means of this instrument of trust, Mr. Griffiths surrendered the legal title to the trustee, but retained within himself the equitable ownership which is the real ownership, and reserving to himself the fullest right to deal with this equitable estate belonging to him, as if no trust had ever been created.

The execution and delivery of the contract imposed upon Mr. Hopkins definite obligations, and also vested in him definite rights. The trustee could do nothing more than to hold the trust assets subject to the directions of Mr. Griffiths, creator of the trust.

Whether or not The Guardian Trust Company knew of this contract seems to us immaterial, since the rights of innocent persons do not intervene. By reason of this contract vesting certain rights in Mr. Hopkins, the trust assets in the hands of The Guardian Trust Company became charged with such rights regardless of whether the trustee had notice of same or not.

It is further contended that the action is in effect one for specific performance and should therefore be refused because plaintiff has an adequate remedy at law. Counsel for the paintiff maintains that the case is properly in equity for an accounting as it squarely comes within the decision of Black, Receiver v Boyd, 50 Oh St 46, where the court said:

“The equity jurisdiction of a Court of Common Pleas in matters of mutual and complicated accounts, is not abrogated by §5130, Revised Statutes (now §11379 GO) which provides that either party may demand a jury trial of ‘issues arising in actions for the recovery of money only.’ An action is not one for the recovery of money only, within the purview of the statute, where, to administer full and complete relief therein, it is necessary to invoke the equity powers of the court to adjust the accounts between the parties, etc.”

With this statement we do not agree, as the decision in Black, Receiver v Boyd, was expressly overruled in Wilson Improvement Company v Malone, 78 Oh St 333. Since the decision of Wilson Improvement Company v Malone, courts of equity in Ohio are not open to actions for accounting for ,the recovery of money unless some peculiarly equitable relief is sought, and the right to invoke the jurisdiction of equity in a suit for accounting is dependent also upon the general rules of equitable jurisdiction.

There are other reasons, however, why this action for accounting can be entertained by a court of equity. The subject matter of the contract is a trust estate and the rights of beneficiaries are involved. This alone would be sufficient to invoke the jurisdiction of a court of equity.

There is another reason. It is conceded that the stock which is the subject matter of the contract was not dealt with in the open market and that same was held closely and was in the hands of very few people. The law is well settled that a contract relating to such stock can be specifically enforced to the same extent as land contracts can be enforced. The very execution of the contract for the sale and acquisition of such stock creates a trust relationship. The vendor in such case is theoretically deemed a trustee holding the stock for the vendee who is regarded as a beneficiary. The analogous example of a land contract proves helpful. Where two persons entered into a land contract whereby one agrees to sell and the other agrees to buy a parcel of land and the vendor in violation of the contract transfers and sells such land to an innocent person for value, the vendee may resort to an action for accounting against the vendor and require a decree of the court to account to him for such profits.

In Goodisson v North American Securities Company, 40 Oh Ap, page 85, (10 Abs 661; 35 OLR 110; 178 NE 2.9), syllabus three reads:

“When corporate stock cannot be obtained in open market, rendering it impossible to give just compensation in damages, equity will decree specific performance to compel issuance to subscriber.”

Syllabus five reads:

“Trust relationship arises by virtue of stock subscription agreement; hence corporation as trustee is bound to exercise highest degree of care for subscriber’s protection.”

In the opinion, on page 94, the court said:

“The fundamental reason for equitable assumption of jurisdiction in such a case as this is the same as in land contracts. In the case of a land contract the vendor is regarded in equity as a trustee holding the legal title to the land for the benefit of the vendee. If the vendor sells the land and disposes of same, there is no question that the vendee may at his election resort to an action" in equity for an accounting.”

By virtue of the contract of August 16th, 1920, a trust estate was created in favor of Mr. Hopkins, and he may, therefore, resort to an action for an accounting to enforce whatever rights he may have.

Our attention is directed to the consequences which would ensue a favorable holding for the plaintiff. It is claimed that such a finding would result in a destruction of the trust estate. It seems to us immaterial to consider such consequences if they are the natural outcome of a proper application of definite legal principles. In this connection it is well to point out that the beneficiaries of the trust, with the exception of two, expressly consented to and approved a judgment and finding in favor of the plaintiff granting him the relief prayed for. It is not a stretch of the imagination to conclude that these beneficiaries so consenting have full faith in Mr. Hopkins.

Miss Elsie A. Kohler, who was Secretary to Mr. Griffiths during his lifetime, and who is one of the beneficiaries under the trust instrument, is a contestant in this suit. She testified something to the effect that at the direction of Mr. Griffiths an unexecuted copy of the contract was ordered marked cancelled. This copy of the contract bearing a pencil notation of Miss Kohler bears the signature of Mrs. Griffiths, but does not bear the signature of either Mr. Hopkins or of Mr. Griffiths. This evidence is, of course, of doubtful admissibility, as on first blush it seems to be a self-serving declaration. Waiving aside the question of admissibility, it must be kept in mind that a contract entered into between parties cannot be cancelled, or its legal effect in any way destroyed by the action of one of the parties without the consent or at least acquiescence of the other contracting party.

The Attorney General of Ohio filed an answer and cross-petition opposing the plaintiff’s prayer for relief and demanding that the terms of the trust be complied with. He appears under the statute in order to protect what is termed to be a “charitable trust.” One of the objects named in the trust instrument was the establishment of a hospital for working men. The statement of the Attorney General seeks to protect this charitable object. It is well to observe that this charitable object, if accomplished at all, would be accomplished in the remote future. In the meantime, the funds remain in the hands of the trustee. For all practical purposes it must be conceded that it is not an object which can be reached in the near future. This charitable object and its final accomplishment must, of course, depend in the main upon the validity and enforceability_ oí whatever rights Mr. Hopkins may have under his contract. If any rights accrue to him it will necessarily, as a legal consequence, diminish the trust estate and thereby affect the charitable object as well as other objects of the trust. We cannot be concerned with the consequences which follow a finding in favor of the plaintiff.

Considering the facts as we find them and applying the law in the light of recognized legal principles, it is our opinion that the plaintiff is entitled to the relief he prays for.

A decree will be entered accordingly.

McGILL, J, concurs. LIEGHLEY, PJ, dissents.

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