Tyler v. Stone

Foote, C. This action was brought to recover the sum of twelve hundred dollars, which Tyler claimed Smith and Stone had borrowed from and promised to repay him in sixty days from the date of the loan. Judgment passed for the defendants, from which and an order denying a new trial the plaintiff appeals.

The written contract, which is made an exhibit to the complaint, and offered in evidence, under the terms of which Tyler makes his claim, is:—

“ Messrs. Stone and Smith are the owners of one hundred thousand shares of the Curtis Consolidated Mining Company’s stock at Virginia.

“George W. Tyler advances twelve hundred dollars to Messrs. Stone and Smith, in consideration of which he is to have ten thousand shares of said stock, or its proceeds; seventy thousand of said stock to be locked up absolutely and not used; thirty thousand shares to be put in a box and to be drawn out by Stone, and sold for the mutual benefit of the three. When drawn out, fifty cents per share is to be placed in the box. When the box contains twelve hundred dollars, same to be drawn by Tyler and charged to him as part of the money to be paid him, he to be paid the twelve hundred dollars in any event. The pool to continue sixty days. Each of the three to receive one third of the money for which the thirty thousand shares are sold. At the end of sixty days Stone and Smith to receive the seventy thousand shares, and each to receive one third of the [238]thirty thousand shares not sold. Settlement to be made on each Saturday afternoon, at two o’clock.

“Witness our hands and seals this thirtieth day of April, 1881.

“J. W. Smith. [Seal]

“H. S. Stone. [Seal]

“Geo. W.Tyler.” [Seal]

According to its terms, it is plain that Tyler was, at the end of sixty days, to be repaid the twelve hundred dollars he had loaned, in any event, whether the pooling arrangement was successful or not.

The evidence of Tyler and Smith, one of the defendants, corroborated the unambiguous language of the contract. Stone’s testimony was contradictory to that evidence in some respects, although it did not attempt to deny the acknowledgment of indebtedness and promise on his part to repay the twelve hundred dollars.