Mutual Loan Soc., Inc. v. Stowe

BROWN, J. (1, 2) When one party to a contract repudiates it, the injured party may elect to pursue one of several remedies. He may treat the contract as rescinded, and recover upon the quantum meruit, so far as he has performed; and, if in performing his part of the contract, he has paid money to the other party, he may maintain an action for money had and received; or he may keep the contract alive for the benefit of all parties, holding himself at all times ready and able to perform, and at the end of the time specified in the contract for performance maintain assumpsit as for a breach of the contract, and recover the loss sustained, and profits, not speculative, he would have realized, if he had not been prevented from performing the contract; or, where specific performance can be compelled, he may, by proceedings in equity, compel specific performance. — Packer v. Button, 35 Vt. 188; Gabrielson v. Hague Box & Lumber Co., 55 Wash. 342, 104 Pac. 635, 133 Am. St. Rep. 1032; Ketchum v. Everton, 13 Johns. (N. Y.) 359, 7 Am. Dec. 384; 6 R. C. L. 1032, § 389. These remedies carry a different measure of relief and cannot be concurrently pursued. — Gabrielson v. Hague Box & Lumber Co., supra. (3) Under our statute, all actions upon contract, express or implied, may be united in the same action, and the statute provides: “The issue may be determined separately by the jury under the direction of the court, and the costs fairly apportioned.” While it is not the office of this statute to authorize the prosecution in the same action of inconsistent remedies arising out of a single transaction, where, as in this case, it does not appear on the face of the complaint that the several counts of the complaint are predicated on a single transaction, and that the several counts embody inconsistent remedies, the question is not properly presented by demurrer. (4, 5) After a party to a contract has repudiated or breached it, he cannot reinstate the contract by an offer to perform; and hence pleas 4, 5, and 6 were obviously bad. Furthermore, it *297 might be that the stock at the time of the breach was valuable, and at the time of the trial it was worthless. This being true, a tender of worthless stock would not satisfy the plaintiff’s claim for damages resulting from a breach of the contract. The rulings of the court on the demurrer to the complaint and the demurrer to the pleas were free from error. (6, 7) The evidence is in conflict as to whether the plaintiff was ever recognized as a stockholder in the corporation. The appellant’s contention, from the evidence, seems to have been that he was not a stockholder; that Lowe had no authority to sell stock, or authorize its sale, and no authority to pay dividends thereon; and it was shown that plaintiff’s name did not appear upon the books as a stockholder. On the other hand, there is evidence tending to show that both Lowe and Kay were either agents of the defendant, with authority to. contract for the sale of stock, or that they were held out as such, and that they contracted to sell and deliver to the plaintiff 25 shares of stock, and that plaintiff paid therefor. There is also evidence tending to show ratification of the contract, and afterward a breach thereof by the defendants. At the conclusion of the evidence the court directed a verdict for the defendant, at its request, as to the counts for money had and received, and refused the affirmative charge as to the other counts requested by the defendant. (8) In these rulings no error of which appellant can complain is shown. In addition to the tendencies of the evidence above stated, the evidence tended to show that the common stock of the corporation was put on the market and sold at $10 per share up to a short time before the alleged breach of the contract sued on; and while the defendant offered some evidence tending to show that the stock was worthless, it was a question for the jury as to what, if any, value the stock had at the time the contract was breached. (9) The measure of damage was-properly stated by the court as the value of the stock at the time of the breach. — Sibley v. Barclay, 14 Ala. App. 422, 70 South. 201. (10) The refusal of the affirmative charge as to the third coúnt of the complaint is within rule 84 of the circuit court practice, and error to work a reversal will not be predicated thereon, because of a variance, in the absence of a showing in the record that an appropriate objection was made to the evidence. — Wood ward Iron Co. v. Steel, 192 Ala. 538, 88 South. 473. *298 (11, 12) While the certificate of stock is mere evidence of the relation of the person to whom issued as a stockholder, and is not at all essential to the relation, and while the acceptance of dividends by the plaintiff might, if properly pleaded, operate as an estoppel against him from maintaining an action to recover the value of the stock because of a breach of the contract to issue such certificate, such defense cannot be availed of in the absence of a special plea. — Jones v. Peebles, 130 Ala. 373, 30 South. 564; 3 Mayf. Dig. 430, § 10. Furthermore, it is conceded by appellant that the plaintiff, although a stockholder, if a breach of the contract to issue the stock was shown, could recover at least nominal damages. This being true, the refused charge made the basis of appellant’s tenth assignment of error was properly refused. (13) The other special charges refused to the defendant are not lettered of numbered, and it is not practical to refer to each and separately point out the vice to which it is subject; but we have examined all of them, and find that they were either invasive of the province of the jury, gave undue prominence to certain facts, were abstract, or ignored some tendency of the evidence. There was evidence which, if believed, authorized the verdict rendered, and justified the refusal of a new trial. — Southern Ry. Co. v. Kirsch, 150 Ala. 661, 43 South. 796; Cobb v. Malone, 92 Ala. 630, 9 South. 738. The judgment is affirmed. Affirmed.