Citation Numbers: 68 Or. 244, 135 P. 521
Judges: Burnett, McBride, Moore, Ramsey
Filed Date: 10/14/1913
Status: Precedential
Modified Date: 7/23/2022
delivered the opinion of the court.
This action was begun by the plaintiff against the defendant to recover $2,695.07, as a balance which the plaintiff claims is due him from the defendant for money which he claims that he paid and expended for the defendant at its special instance and request, between the first day of July, 1908, and the first day of November, 1909, and in the payment of claims which had accrued against the defendant for services performed for it, and expenses incurred by it in and about its business in which it was engaged, between said dates. The complaint alleges that the plaintiff paid and expended for the defendant, at its special instance and request, in the aggregate $4,605.07, and admits.
According to the evidence of the plaintiff and Charles Coopey, it was agreed between the plaintiff, Chas. Coopey and William Peaslee, all directors of the defendant, that the defendant should issue and sell bonds to raise money with which to carry out their plans, and that the payment of the bonds should be secured by a deed of trust upon the defendant’s property, and that with every bond sold a stated amount of the capital stock of the company should be issued to the purchaser. This was agreed upon by these parties, and at the same time it was agreed by these parties that the plaintiff should finance this bond issue, and the surveying and the advertising, and everything connected therewith, and pay for the same, and that he should be reimbursed therefor from the proceeds of the bonds to be sold, as such proceeds should come in. The plaintiff testified that such was the contract, and that there was no other contract, and that he was to have the money to reimburse him as it came in from the sale of the bonds. The evidence shows that the plaintiff paid the money, and made the expenditures pleaded in the complaint under said contract, and under no other. The scheme was advertised in the public' press and in various other ways, and the plaintiff seems to have expended the money in an effort to “boom” the town-site and to float the bonds, but no bonds were issued or sold. There seems to have been a defect in the title to a part of the defendant’s land, and this may have had some effect in preventing the sale of the bonds. At any rate, no bonds were issued or sold. Solicitors were sent out by the plaintiff to sell the bonds, and
We do not find it necessary to examine the items of the plaintiff’s account, and we do not express an opinion as to whether all of them were proper expenditures, as the view that we take of the facts and the law renders it unnecessary to go into the various items. Nor do we find it necessary to decide whether the contract with the plaintiff was binding on the defendant.
According to all the evidence bearing on that point, the plaintiff agreed that he would finance the scheme that he and Coopey and William Peaslee had agreed upon, and attend to the sale of the bonds, and reimburse himself for all of his expenditures from the proceeds of the sales of the bonds. As stated, supra, he received on subscriptions for bonds that were never issued, $1,910, and credited it on his account for expenditures. The evidence shows that the defendant has had to repay the persons who paid said sums to the plaintiff on said subscriptions the amounts by them so paid.
The question for decision is, Was the plaintiff entitled to the judgment which he obtained for the money, which he claims to have expended, under the evidence as to said contract? We assume for the purposes of this decision that he and Mr. Coopey have stated the terms of the contract correctly, and that he was to finance and manage the scheme for the issue and sale of the bonds and for the surveying and other
In Lyman v. Northern Pacific Elevator Co. (C. C.), 62 Fed. 891, the facts were that under a stockholders’ loan to a corporation, it was provided that each loan to the company his pro rata share of $275,235 which the number of his shares bore to the total amount of shares, and that the company’s notes at 12 months should be issued for the loan, payable out of the first net earnings of the company, and the court held that the notes were payable out of the net earnings, and if there were no net earnings, there could be no recovery. Referring to said contract, the United States Circuit Court says: “I think it is very clear from the agreement and note, which must be read as one paper, that there is no liability of the company upon this note, except out of the net earnings, and that if net earnings had not been made, it cannot be contended that the company is liable for the face of the note as absolutely as if there was no provision, either in the note or contract of August 15, 1890, respecting payment out of net earnings. Certainly, the clause was inserted for some purpose — either to limit the liability or add to the security of the stockholders. It certainly does not add to his security; for, if no provision had been inserted when the note became due, not only the net earnings, but all the company’s property, could have been applied to the payment of the note. It, therefore, limited the company’s liability to the net earnings.”
In Eaton v. Richeri, 83 Cal. 185 (23 Pac. 286), the facts were, that the defendant agreed to pay the plaintiff for services $3 per day, and it was also agreed that such payment could be made in provisions and supplies, “and, for any balance that might be due, the plaintiff was to wait until certain mining property was sold, or until a sum sufficient to pay the plaintiff said balance was realized from said mine.” The plaintiff performed services for the defendant until,
In Congdon v. Chapman, 63 Cal. 359, the court says: “The plaintiff sold to the defendant certain shares of the capital stock of the Erie Consolidated Mining Company, upon defendant’s agreement to pay for the stock, at a stated rate per share, from the first money tvhich can be realised from the sale of any stock of said company owned or controlled by him (Chapman); * * and said Chapman agrees to use all reasonable efforts to realize on the stock of said company owned or controlled by him without unnecessary delay, to the end that said payment may be made to said Cong-don. By this agreement the parties clearly expressed their intention that the stock should be paid for out of the first moneys that could be realized from the sale of any stock of the company owned or controlled by Chapman, the latter further agreeing to use all reasonable efforts to realize on the stock without unnecessary delay, ‘to the end, that said payment may be made to said Congdon.’ At the trial the court below found that the defendant-used reasonable * * efforts to sell the stock, but had been unable to sell any of it. Under such circumstances, to hold the defendant liable in this form of action would be to make and enforce between the parties a contract essentially different, from the contract that they themselves made, and from that declared on.”
In Murray v. Baker, 6 Hun (N. Y.), 264, the facts were that the plaintiff did certain flagging for the defendant in front of eight houses erected by the defend
In Smith v. Ross, 51 Mich. 116 (16 N. W. 258), tbe facts were that tbe defendants agreed, upon tbe completion of certain work and acceptance by tbe architect, to pay Degaw tbe sum of $200, wben be presents an order from tbe painter, the money to he paid when Ross & Spaulding get the last payment upon the contract, for building bouses. Tbe buildings were accepted by tbe architect, and, if tbe contract bad been performed, tbe land owner was bound to pay. However, be refused to pay, and on defendants suing him, tied up tbe case in chancery, and they did not get their pay until after this case was commenced. Campbell, J., says: “The court (below) put tbe case to tbe jury that unless defendants used diligence to collect tbe
In the case of Jackson v. Phillips County, 25 Ark. 64, the facts were that Jackson, the plaintiff made a contract with Phillips County, whereby he was to make plats of the county, and mark on said plats the lands previously assessed, and thereby find the lands not assessed, and by the contract, he was to have as compensation, one half of the amount of the taxes that should he collected on the lands then placed on the tax books and not theretofore assessed. In this case, the court says: “The proposal made by Jackson to the County Court, and which was accepted, was that Jackson was to receive for his services one half of the money collected off of the lands which he might ascertain to have been omitted in the late assessments of the county taxes; and this right to compensation depended upon the performance of his contract, by ascertaining the omitted lands and bringing them upon, the assessor’s list, and that money had been received in payment of taxes on the lands so ascertained and assessed. Then, and not until then, would he have a right to claim of the county one half of the money collected, because his contract was conditional, and his
In Breaux v. Lauve, 24 La. Ann. 179, the facts were that Thomas Mille and Lauve & McCall entered into an agreement for the purpose of buying public lands on speculation, on equal shares. Mille furnished the funds for the business, and after the lands had been purchased, Lauve & McCall executed to Mille, a contract acknowledging that they were indebted to Mille, on account of the funds so furnished in the sum of $7,752.54, and interest, and agreed that Mille should be reimbursed for the said sum as the lands entered and purchased are sold or otherwise disposed of. Mille died, and said action was instituted by his representatives. The court, in deciding said cause, says: “It is argued on the part of the plaintiffs that the action on the obligation (referred to supra) is not prescribed, as the term for its perfprmance has not arrived. The $7,752.54 are to be paid proportionally as the lands entered and purchased are sold, or otherwise disposed of; and the lands remain unsold, and have not been otherwise disposed of. The recovery of the sum specified out of the proceeds of the lands when sold, the plaintiffs contend, is incidental to the partition, and the action or partition is not prescribed. "We think the case is with the plaintiffs. The obligation is clearly one contracted on a suspensive condition depending on a future event which has not yet taken place, viz., the sum expressed is to be paid proportionally as the lands * * are sold. It is not shown that any of the lands acquired by the parties under their agreement were ever sold.”
In the case of Snell v. Cheney, 88 Ill. 260, the court says: “The contract of Snell, Taylor & Co. to pay the debts of the railroad company cannot be regarded as an absolute agreement to pay, but it was a contract to pay from the proceeds of a specified fumd — from the
In the case of Clark v. White, 59 Ind. 437, the facts were that the plaintiffs were to do certain excavations for a railroad track, and were to receive part of their compensation “from the collection in stock subscriptions, and the remainder was to be paid out of taxes voted by Washington township to the Anderson, Lebanon & St. Louis Railroad, as soon as said' tax is collected and paid to said railroad company.” Referring to an instruction given in said case, the court says: “This instruction does not correctly express the meaning of the written contract. It makes no reference to the stipulation contained in it that payment for the labor was to be made out of the subscription and tax mentioned by its terms, and is” therefore “erroneous. Its plain meaning is that, if the appellees had performed the work, they were entitled to their pay, whether any amount of the subscription or tax had been collected or not. This is not according to the terms of the contract under which they undertook to do the work.”
In the case of Arment v. Yamhill County, 28 Or. 474 (43 Pac. 653), the facts were that the plaintiffs and the county entered into a contract whereby the plaintiffs undertook to furnish the county lists and plats for the purpose of ascertaining the lands in the county that had not been taxed, etc., and for their ser
We have quoted from decisions at considerable length to indicate what the decision in this case should be.
In this ease the defendant had no money whatever, and no assets excepting the land referred to, and some treasury stock. The plaintiff knew this. He was a stockholder in and an officer of the defendant and knew its condition.
The scheme referred to, supra, to “boom” the proposed woolen-mills and factory, and other contemplated improvements at Gordon Falls and to issue and sell the bonds, was a more or less uncertain venture. The plaintiff is shown to have had great faith in it.
Tbe evidence does not support the allegations of tbe complaint or tbe findings of the court below. We find that there was no evidence to sustain the plaintiff’s cause of action, or to support tbe findings of tbe court below, and that tbe motion for a nonsuit should have been sustained.
Tbe judgment of the court below is reversed, and the case remanded to the court below, with directions to sustain said motion for judgment of nonsuit, and to dismiss this action. Reversed With Directions.