Haines v. Stilwell

HAYNES, C. This action was brought by Haines to recover from Stilwell $6,293.65, with interest. The cause of action was single, but was stated in different forms in the complaint: First, for money loaned; second, for money had and received; and the third count set out a contract in writing made March 30, 1891, whereby defendant agreed to sell and plaintiff agreed to buy one-half of the capital stock of the Stoney Creek Improvement Company, a corporation, defendant then being the owner of all the stock of said corporation. Certain payments were made thereon by plaintiff, the particulars of which need not be stated in this connection. The stock was not to be delivered until fully paid for, and none of it was delivered. On or about August 12, 1891, .the parties thereto, under date of April 15, 1891, indorsed upon said contract the following: “We do hereby mutually agree that this contract is and shall be null and void”—and signed their names thereto; and it was alleged that defendant promised and agreed to repay to the plaintiff all moneys he had paid or advanced under said contract. The issues raised by defendant’s answer were tried by the court, without a jury, and findings and judgment were for the plaintiff for $4,793.65, with interest thereon from August 12, 1891. Defendant’s motion for a new trial was denied, and this appeal is from the judgment and the order denying a new trial. Appellant 'specifies findings 1, 3, 5, 6, and 8 as not justified by the evidence.

1. The court found that plaintiff paid under the contract $4,793.65, and appellant contends that the evidence is in[29]sufficient to sustain a finding for more than $2,789.15. A careful examination of the evidence reveals no ground upon which this finding should be disturbed. The principal point of difficulty in the mind of appellant seems to be based upon the “Nager Mill” sale, as to which the plaintiff claimed that defendant guaranteed he would sell it for a specified sum, which was larger than defendant received for it. But the court clearly found against plaintiff’s contention that defendant guaranteed to sell the mill for $8,000, and must have found that defendant sold it for $6,500—$2,200 in cash and $4,300 in notes—and credited plaintiff and charged defendant said cash as received under said contract (the notes having been delivered to plaintiff), and this is in exact accord with defendant’s testimony as to that transaction.

2. The third finding is to the effect that at the time of the rescission of the contract the defendant promised and agreed to repay to the plaintiff all the moneys he had advanced or paid to the defendant under the contract. There was direct testimony given by the plaintiff sufficient to sustain this finding, and, while there was a conflict of evidence, such conflict principally related to how and when and to what extent the plaintiff should be reimbursed. There seems to have been a proposition made by defendant, after the cancellation of the contract, to pay plaintiff $3,000 when the property should be sold, and that plaintiff was willing to accept such proposition provided the defendant would agree in writing to do so; that defendant said he would send such agreement to the plaintiff, but never did it; and defendant contends that, as the plaintiff did not allege such agreement or promise in his complaint, he cannot recover upon it in this action. But the plaintiff’s recovery is not based upon such promise, but upon the original promise made at the time the contract was rescinded. Of course it was in the power of the parties to change the agreement, but such new agreement was never perfected, the condition imposed by the plaintiff not having been complied with.