Maurer v. King

TEMPLE, J.

This is an appeal by plaintiff from the judgment, and the contention is that the findings do not support the judgment.

The court found all the facts substantially as they are set out in the complaint and that all the denials and allegations in the answer are untrue, and rendered judgment for defendant.

On the 8th of February, A. D. 1895, one J. W. Smith, for a valuable consideration, executed and delivered to plaintiff the following instrument in writing:

“At settlement this eighth day of February, 1895, at Oakland, Cal., and at which time I have purchased George H. Maurer’s interest in twenty-five acres of fruit trees, house, etc., on south one-half of section 7, township 18 FT., E. 5 E., in Butte county, Cal., and in part payment I give said Geo. H. Maurer (1,000) one thousand shares of the capital Stock of the Shenandoah Quartz Mining Company (reorganized), at fifty cents per share, and in order to save said Maurer from any loss on said stock I guarantee that it will be worth fifty cents or more per share inside of two years from this date, in cash—and if he holds said stock at the end of two years from this date, and so requests, I will take it from him and pay him for it at fifty cents per share, and I will pay all assessments on said stock that may be levied on it up to April 1, ’95, gratis—as witness my hand the day and date above written.

“J. W. SMITH.”

Smith died intestate November 15, 1895, and defendant is his administrator. At the end of the stipulated period of two years plaintiff still had and owned the shares of stock mentioned in the agreement, and on the twelfth day of February, 1897,

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requested the administrator to take said-stock, which was then tendered to him, and pay plaintiff fifty cents per share, which was the first demand made by plaintiff upon the administrator.

On the same day plaintiff presented to the administrator for allowance his claim for the said sum of five hundred dollars, which claim was verified on the eighth day of February, A. D. 1897, as a claim for money due.

A copy of the contract was attached to the claim, and the same included an offer to surrender the certificates of stock, duly indorsed in blank by Smith, in the same condition in which plaintiff received them from the deceased. The claim was rejected by the administrator on the said twelfth day of February, A. D. 1897. This suit was commenced more than two months after that time.