Young v. Matthew Turner Co.

MELVIN, J.

Defendant appeals from a judgment for $2531.25.

No testimony was offered by either party, the judgment resting upon the complaint, the answer, and cross-complaint. In the complaint, filed November 3, 1909, it is alleged that on August 1, 1894, Matthew Turner and plaintiff’s agent entered into a certain contract whereby plaintiff sold to said Turner the nine-sixteenths interest in the brig “Galilee” for thirteen thousand five hundred dollars, and by which also Turner bound himself and his heirs to give the privilege of purchase to said Young whenever he should intend to sell the said interest or after his death, “the conditions of such sale or purchase being a reduction of $2250 per annum” on the price of thirteen thousand five hundred dollars. It is averred that the said instrument was recorded in August, 1901; that on the tenth day of February, 1909, Matthew Turner sold and assigned said nine-sixteenths interest in the brig to the defendant corporation ; that prior to and at the time of such sale and assignment defendant well knew of the execution, existence, and terms of the agreement between Young and Turner; that Matthew Turner died on February 10,1909; that on May 14, 1909; plaintiff Young demanded of the corporation defendant a conveyance of the said nine-sixteenths interest, but that such demand was refused. The prayer was for a judgment that defendant execute a proper conveyance to plaintiff of said interest.

The answer admitted the execution of the contract between Young and Turner, but alleged that thirteen thousand five hundred dollars was at the time of making said agreement the full value of the interest sold; “ and that it was the intention and contemplation of the parties that the privilege of purchase should be exercised by the plaintiff, if at all, within a reasonable time, and that such reasonable time had long since expired before the death of Matthew Turner.” The answer contained the following averment: “And defendant says that the plaintiff never has obligated himself to purchase the said vessel upon any terms and has never made any offer so to do,

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and that it would now he unreasonable, unjust and inequitable that the plaintiff be allowed to recover the nine-sixteenths interest in the said vessel without the payment of any sum therefor. That the defendant did not render, nor did the said Matthew Turner receive a good or sufficient consideration for the making of the said contract, or for the performance thereof as now demanded by the plaintiff. ” There was also a statement in the answer that Matthew Turner did not sell his interest in the brig to defendant, but that it was transferred to defendant for convenience, the corporation having been formed by Turner and all of the stock having been issued to him. Finally the answer pleaded the laches of Young in delaying so long to assert his rights, if any, under the contract and set up the alleged bar of the statute of limitations. (Code Civ. Proc., secs. 337, subd. 1, and 343.)