Marinovich v. Kilburn

SHAW, J.

Appeal by the defendant from the judgment' and from an order denying his motion for a new trial.

On July 21, 1903, the defendant executed the following, contract in writing:—

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“Whereas, F. P. Marinovieh is the owner of fifty shares ■of the capital stock of the Watsonville Transportation Company, for which he has paid the sum of $3,000.00, or $60.00 j>er share, in full payment therefor:

“Now, these presents witnesseth: That in the event of the non-payment of an annual dividend of not less than three and one half per cent upon the purchase price of said stock, I hereby agree to pay to F. P. Marinovich that sum, viz: three and one half per cent upon his investment of $3,000.00, in said stock, myself.

“I further agree that in the case of any default in the payment of an annual dividend of not less than three and one half per cent upon each of the fifty shares of said stock owned by said F. P. Marinovich, to purchase the same at any time he may request me to do so, after such default; and to pay therefor the sum of $60.00 per share spot cash, upon the delivery to me of the certificate of stock properly indorsed.”

The company never paid any dividend upon the stock, whereupon, on March 30, 1905, the plaintiff tendered to defendant his certificate of stock, properly indorsed, and demanded that defendant then and there repurchase said stock and pay plaintiff three thousand dollars therefor. Defendant refused and the plaintiff began this action to recover the price so agreed upon. The action was tried by a jury, which returned a verdict for the plaintiff for three thousand dollars.

The complaint declared upon the above contract according to its legal effect, averring, in substance, that the defendant thereby agreed to purchase the fifty shares of stock in question at the price of three thousand dollars, if the company did not pay an annual dividend of not less than three and one half per cent upon said stock. Upon the trial, the introduction of the contract in evidence, in support of the allegation, was objected to on the ground that there was a variance between the contract alleged and that offered in proof, and the objection was overruled.