Flagg v. Dare

Belcher, C. This is an appeal from an order dissolving an attachment.

It is alleged in the complaint that on the twentieth day of January, 1891, the plaintiff purchased and had issued to him forty shares of the capital stock of the California Rational Bank of San Diego, for which he then paid five thousand dollars, and that he afterward received as dividends on the stock one hundred and twenty-five dollars and no more; that to induce plaintiff to purchase the said stock the defendants, prior to the said purchase, made and executed their agreement in writing, reading as follows:

[484]“ San Diego, California, Jan. 20, 1891.

“In consideration of the subscription of Mr. O. J. Flagg for forty shares of the capital stock of the California National Bank of San Diego, California, at the price of one hundred and twenty-five dollars per share, we, the undersigned, hereby agree that in the event of the said O. J. Flagg desiring to dispose of the said forty shares of bank stock, that we will, on sixty days’ notice, purchase the same at a price at not less than one hundred and twenty-five dollars per share, and allow the said O. J. Flagg interest on said stock at the rate of not less than ten per cent per annum for the time the money was invested, less any dividends which may have been paid on said stock.

[signed] “ D. D. Dare,

“ J. W. Collins,

“ S. G. Havermale.”

It is further alleged that on the 8th of August, 1891, plaintiff desired to dispose of his said stock, pursuant to the terms of said agreement, and so notified defendants; that he was then and at all times mentioned able to return said stock to defendants, and thereafter, on the 10th of October, 1891, he offered to return the same to them, and demanded of them the performance of their agreement and that they take and purchase from him the said shares of stock at the price he paid for the same, and allow him ten per cent per annum on his investment of five thousand dollars for the time said money was invested, but, to perform the same, or any part thereof, defendants failed and refused, and still fail, neglect, and refuse to do so; that plaintiff tenders said stock into court, and prays judgment against defendants for the sum of five thousand dollars, and interest thereon at the rate of ten per cent per annum from January 20, 1891, less the sum of one hundred and twenty-five dollars received by him as dividends thereon.