McManaman v. Vickrey

CONREY, P. J.

The defendant appeals from the judgment and from an order denying his motion for a new trial. At the time when the last-named order was made there was no right of appeal from such an order.

(Hockerston

v.

Hockerston,

41 Cal. App. 195, [182 Pac. 325];

Hirsch

v.

All Persons,

173 Cal. 268, [159 Pac. 712].)

Prior to the first day of April, 1911, one Bonnard, as agent for the Colorado & Wyoming Coal Company, a corporation, solicited the plaintiff to buy certain stock of that corporation. Appellant’s testator, C. K. Ingersoll, the original defendant in this action, had purchased stock of the corporation and recommended the stock to the plaintiff. As an inducement to aid in persuading plaintiff to buy such stock, Ingersoll gave Bonnard, for delivery to the plaintiff,

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an agreement in writing which was delivered to the plaintiff. This agreement, so far as necessary to the discussion here, reads as follows: “This is to certify that in the event that I. W. McManaman purchases $5,000 worth of preferred stock in the Colorado & Wyoming Coal Co., I will, after one year from date hereof, purchase the same from him at par value, plus 7% interest on all payments made to the Colorado & Wyoming Coal Company or its agent”; signed hy C. K. Ingersoll, and dated Monrovia, California, April 1, 1911. Without considering the debate of counsel concerning the extent to which the plaintiff relied upon this contract, as compared with his reliance upon the representations made hy the agent of the corporation and upon other sources of information, we will assume that, as found by the court, the plaintiff in agreeing to purchase and in purchasing the stock did so in reliance upon the said agreement of Ingersoll. The plaintiff did purchase stock to the extent of five thousand dollars, paying part in cash and giving his notes for the remainder. Afterward the plaintiff was sued on said notes by an assignee thereof and judgment was rendered against him; whereupon he did, on the twenty-fourth day of May, 1912, pay the amount of that judgment, and thereby paid in full for the stock purchased by him. A stock certificate therefor was delivered to him on or about the twenty-seventh day of September, 1912. The plaintiff claims that within due time he elected to sell the stock to defendant under the option given in that agreement, and demanded that defendant perform the contract according to its terms. Appellant claims that the attempted exercise of said right of option came too late.