Wintermute v. . Cooke

Rapallo, J. We are of opinion that the judgment in this case for the amount of the face of the bonds in money cannot be sustained. By the terms of the contract the defendant was to pay to the plaintiff and James Stinson $50,000 in cash, and $50,000 in bonds of the Northern Pacific Railroad Company. The cash payment was made, and all that remained due on the contract, assuming that Stinson and Wintermute had performed their part of it, was the $50,000 of bonds. This action was brought by Wintermute alone, Stinson being made a party defendant. It was not brought for the recovery of damages for the non-delivery of the bonds, but was an equitable action *111 brought by Wintermute for the purpose of obtaining an accounting and settlement between himself and Stinson, and. an adjustment of their rights as between each other in respect to the money which had been received of the defendant, and the bonds still to be received under the contract. The relief demanded against the defendant was that he pay $50,000 in money, or transfer bonds, according to the terms of the contract, to a receiver to be appointed, and that he be restrained and enjoined from paying the fund or transferring the bonds or any part thereof to Stinson, or settling with him. The complaint does not set up any claim for damages by reason of the bonds not having been delivered, nor does it contain any allegation as to the value of the bonds. A delivery of the bonds to a receiver would have satisfied the demand set up in the complaint. An order of injunction also appears to have been granted restraining the defendant Cooke from paying the fund or transferring the bonds to Stinson or any other person. The judge, before whom the action was tried, finds that the plaintiff and the defendant Stinson performed their part of the contract, but that immediately after such performance they each gave notice to the defendant Cooke not to pay the final installment of $50,000 in bonds to the other, and each claimed and demanded the whole thereof from said Cooke as his own; and said Cooke refused to pay the same or deliver said bonds to either of them, upon the ground, among others, that the plaintiff and the defendant Stinson each claimed the whole, and each had forbidden the payment to the other. The result of the reference between the plaintiff and Stinson was to establish that each was entitled to about one-half of the bonds. The court, instead of adjudging that the defendant Cooke deliver the bonds to the plaintiff and Stinson, or to a receiver as prayed in the complaint, rendered a judgment in their favor against the defendant Cooke for upwards of $60,000 in money, being the face of the bonds with interest. We think the facts found show this conclusion to be *112 clearly erroneous. It is true that a demand of the bonds is alleged in the complaint and admitted hi the answer, but the proofs and findings show that the demand was made in such a manner that it was impossible to comply with it. Each of the parties demanded that all the bonds should be delivered to him, and forbade that any of.them should be delivered to the other. The learned judge remarles, in Ms opinion, that Cooke having been forbidden by plaintiff and Stinson severally to pay the other could not safely pay to either, and was therefore justified in awaitmg an action, and on that ground he refuses to charge Mm with costs. The same reasoning should have led to the conclusion that a demand and refusal, under such circumstances, were not sufficient to charge the defendant Cooke with a liability to pay in money instead of bonds. No proof was given as to the value of the bonds, nor was any such question presented by the pleadings. If the action had been properly framed for the purpose, and such a demand proved as to put the defendant Cooke in default, all that could have been recovered of him would have been the damages sustained by his failure to deliver the bonds and those would have been only the market-value of the bonds at the time of the refusal. It is claimed by the respondent that in the absence of proof of value the defendant would be chargeable with their nominal value. But however this may be, to justify such a recovery, the action should have been brought for damages, and a case should have been made out showing that the defendant was liable for the value of the bonds and could not discharge himself by transferring the bonds. As the case stood upon the pleadings and the facts, there was nothing to show that the value of the bonds was a material question, or to call upon the defendant to give evidence concerning it. The judgment should be reversed and a new trial ordered, with costs to abide the event. All concur, except Miller J., not voting. Judgment reversed.