Walker v. Price

LORIGAN, J.

This action (an amendment to the complaint having been allowed by the court at the close of the evidence in the case) was brought by plaintiff under the common count of

quantum meruit

to recover from defendant the sum of $5,109, the alleged reasonable value of services performed by him at the request of defendant in selling fifteen thousand shares of the capital stock of the National Gold Dredging Company. The answer denied all the allegations of the complaint, which were only such as are usual in charging on this common count.

[618]

Plaintiff had judgment for $3,750, and defendant appeals therefrom and from an order denying his motion for a new trial.

There is only one point in this appeal that merits any consideration. The evidence on the part of plaintiff was that about January 28, 1908, a verbal agreement, which was to be thereafter reduced to writing and executed by defendant, was made between plaintiff and defendant who was president and treasurer of the above named corporation, whereby plaintiff should immediately undertake and effect the sale of twenty thousand shares of the capital stock of the corporation at one dollar per share, and in consideration thereof plaintiff should receive for every two shares of said stock sold by him one share of the stock of said company for himself and be made vice-president of the corporation and general manager thereof at a salary of three hundred dollars per month; that on making this verbal arrangement plaintiff was directed by defendant to proceed forthwith and as rapidly as possible to effect a sale .of the stock, as the company was in immediate need of funds, defendant assuring him that a written contract, as agreed, embodying the above terms, would be prepared by him and executed; that plaintiff at once proceeded to sell said stock, and by 'March 1, 1908, had 'made various sales thereof at the stipulated price of one dollar per share, turning over to defendant the proceeds thereof; that while making such sales he frequently requested the defendant to deliver to him the written contract agreed on between them, but on different pretexts the defendant postponed doing so; that he made sale of fifteen thousand shares of the stock, and at the time he turned over the last amount of money for the sale thereof— about March 1, 1908—he again requested that such written contract be delivered to him; that defendant then, for the first time, denied that he had agreed to give plaintiff a written contract or had made any such arrangement with him as plaintiff claimed, or that he had at all arranged with plaintiff to sell said stock, but asserted that any arrangement respecting the sale thereof was made between plaintiff and one Dubois, and thereupon directed plaintiff to make no further contracts for the sale of, or sell, the rest of the twenty thousand shares; that plaintiff did not, and thereupon commenced this action.