Darrin v. Whittingham

Schmucker, J,, delivered the opinion of the Court. The appellant, Darrin, as plaintiff below, sued the appellee in the Superior Court of Baltimore City for an alleged breach of a written contract and the appellee as defendant filed the general issue plea. On the trial of the case the defendant, at the close of the plaintiff’s testimony, offered a prayer, asking the Court to take the case from the jury for want of legally sufficient evidence, which was refused. The defendant offered no testimony, but rested his case on the plaintiff’s evidence, and the jury found in his favor, and from the judgment entered on ⁴⁸ their verdict the plaintiff appealed.

The record contains three exceptions, two to rulings upon evidence and the other to the Court’s action on the prayers. The contract sued on was made between the two parties to the suit on November 26th, 1901, when they owned, in equal portions, substantially all of the capital stock of the Automatic Switch Company, for the purpose of regulating sales of the stock to be thereafter made by either of them. ' It provides that any sales of the stock to third parties that may be made by mutual consent shall be drawn equally from their respective holdings. It further provides that in the event either one of them desired to dispose in part or wholly of his holding of the stock the other “shall have the refusal of the stock at whatever selling price has been set by the purchaser,” stating that the object of the agreement is to keep the holdings of stock of the two parties “equal at all times except when either party desires to reduce his holdings voluntarily.” The breach of the contract alleged in the declaration is that although the defendant had repeatedly refused when requested by the plaintiff to name a price at which he would sell his shares of the stock to the plaintiff, he had on February 23rd, 1905, offered and agreed in writing to sell to Hollis J. Parks 1,490 shares of the said stock for $20,000 and that before the defendant had delivered the stock to Parks the plaintiff tendered to the defendant $20,000 and demanded that the stock be sold to him (the plaintiff) but the defendant refused, “and the plaintiff was compelled to purchase the said shares of stock from said Hollis J. Parks at the price of twenty-two thousand five hundred dollars ($22,500), that being the lowest price at which the plaintiff could purchase said stock, which was an advance of twenty-five hundred dollars over the price for which the defendant agreed and did sell said stock to said Parks.” It is further alleged in the declaration that the plaintiff, when he tendered the $20,000 to the defendant and demanded the sale to him of the 1,490 shares of stock, “at the same time tendered the defendant consents to the discontinuance of the suits, mentioned in the agreement, between the defendant and said Parks.” ⁴⁹ The agreements touching the alleged sale of the 1,49o1 shares from Whittingham to Parks and their purchase from' the latter by Darrin were also put in evidence by the plaintiff: Both agreements are dated February 23rd, 1905. The onei between Whittingham and Paries gives to the latter a three' days’ option to purchase the stock at $20,000 and stipulates,1 in the event of the purchase, for the discontinuance of alb pending suits and proceedings between Whittingham and' Darrin or Parks or any of them. ' * The contract between Parks and the plaintiff- (Darrin) forth e alleged sale by the former to the latter of the 1,490 shares of stock for $22,500 recites that Parks has contracted to pur-1 chase the shares from Whittingham and that he “is willing to1 accept the said option and pay the purchase price thereof”' and that Darrin is desirous of purchasing the said stock and’ then contains a formal agreement for its purchase by Darrin from Parks for $22,500.

The contract among other things' provides, as one of the terms of the sale, that Darrin is to discontinue certain specified suits pending between him and1 Whittingham and others and that Whittingham and Parks! shall discontinue all suits and cancel all bonds and undertak-ings by and between them or either of them and the Auto-'' matic Switch Company or Darrin or the D. H. Darrin Com-1 pany. In the last paragraph of the contract Parks agrees'that the contract contains nothing inconsistent with his option for the stock from Whittingham, except with reference to the' amount to be paid to Whittingham. ' There is evidence in the record tending to prove that at the' time of the sale of stock to which these contracts reláte, thépersonal relations between Darrin and Whittingham were-strained and they were involved in hostile litigation over' matters which are not shown to have any relation to this suit.1 There is also evidence in the record tending to prove that Whittingham did not, before giving Parks the option to buy' the 1,490 shares of stock at $20,000, afford Darrin an opportunity to purchase them at that price, and that Darrin in agreeing to pay Parks $22-, 500 for the stock did not know that' ⁵⁰ he was in reality dealing with Whittingham but supposed that the stock belonged to Parks and that he, Darrin agreed to pay the $22,500 for it only to prevent it, as he supposed, from passing into the hands of his competitors in business, aud further that when Parks, after the contract for the sale at $22,500, had been made, stated that he was to pay Whittingham only $20,000 for the stock, Darrin demanded of Parks, as being the agent of Whittingham, the delivery to him of the stock for $20,000, and that after such-refusal he paid Parks the $22,500 for it in order as he believed, to protect himself. There is on the contrary evidence, brought out mainly by the cross-examination of the plaintiff, that he well knew, and had testified in another case between him and the defendant that he knew, during all of his negotiatious with Parks relative to the purchase of the 1,490 shares of stock that Parks was in fact acting as the representative of Whittingham in the matter and that the latter was negotiating for the sale of his' stock through Parks and that he (Darrin) understood and believed at the time of purchasing the stock that the money he paid for it was paid to Mr. Whittingham, less such charge if any as Parks may have made in the matter and that up to the minute when he paid over the money he was fully of the belief that Whittingham owned the stock and Parks was the agent. The defendant was put upon the stand by the plaintiff and testified that Parks had acted as his agent in selling the 1,490 shares to Darrin and also testified in' substance that, in order to get the highest price for the 1,490 shares of stock from Darrin, he had furnished Parks with three options on it, one at $20,000, another at $21,000, and the third at $22,500 with the instruction that Parks was to obtain the best price that Darrip was willing to pay for the stock, but he admitted that up to that time Parks had paid him only $20,000 of the $22,500 received from Darrin for the stock. .

At the close of the evidence the plaintiff offered five prayers, of which the Court refused the third, fourth and fifth, and granted the second as offered and the first in connection with ⁵¹ the defendant’s second prayer. The defendant offered ten prayers all of which were rejected except the second which was granted in connection with the plaintiff’s first prayer. The plaintiff’s first prayer asked the Court to instruct the jury that if they found the making of the contract of November 26th, 1901, between the plaintiff and defendant, and that it was in force on February 23rd, 1905, and “that on that day the defendant gave an option on his said stock to one Parks for $20,000, and did not inform the plaintiff of said option or give him an opportunity to purchase the said stock at said price and that without the knowledge or consent of the plaintiff, the said Parks exercised the said option and got possession of said stock for the said sum of $20,000, and that the plain-, tiff who desired to purchase said stock was compelled to give the said Parks $22,500 for the same, then the plaintiff is entitled to recover.’’ The defendant’s second prayer which was" granted in connection with the plaintiff’s first is as follows: “If the jury shall find from the evidence that the defendant never in fact sold his stock to Parks but that Parks was merely the defendant’s agent in effecting the sale of defendant’s stock to the plaintiff then under the pleading and evidence in the case the plaintiff is not entitled to recover.” The plaintiff’s second prayer, which was granted, fixed the measure of damages, in the event of a verdict in his favor, at the sum which the jury might find