Talbott v. Nibert

The opinion of the court was delivered by Wedell, J.: This was an equitable action to compel one stockholder to comply with an option contract to sell to another stockholder in the same corporation shares of stock, after the plaintiff had exercised the option to purchase. The action was tried by the court without a jury. Judgment and special findings were all in favor of the plaintiff and the defendant appeals. The Pabco Drilling Company, issuer of the stock, was made a party defendant for the purpose of giving it notice of the action and in order that a proper transfer of the stock might be effected. It was directed to issue the stock in question to plaintiff. The corporation is not appealing. We shall hereafter refer to the appellee, W. G. Talbott, and to the appellant, Claude A. Nibert, by name, and to the company as the corporation. A chronological statement of pertinent facts will'be made first. Other facts, where necessary, will be treated under contentions of the parties. In 1946 the corporation was in bad financial straits. Its sole asset was a $40,000 drilling rig which was subject to a $23,-000 mortgage. The corporation had other debts and could not meet its obligations. At one(time prior to the granting of the option contract in question to Talbott it seems D. J. Briggs, another stockholder, desired to acquire an option to purchase Nibert’s twenty-eight shares of stock. Talbott had learned that certain parties, for whom the corporation had drilled, refused to do further business with it if Nibert was connected with its affairs. Talbott was a geologist and oil operator. He had various business interests and contracts with the oil industry. He refused to invest additional capital in the corporation and to give his time to its development unless he could acquire the majority of the stock and control the business policies of the corporation. The acquisition of Nibert’s stock would give him that control. Under this state of facts Briggs concluded to confer with Nibert for the purpose of getting Nibert to grant Talbott an option to purchase Nibert’s stock. — 140 — On October 29, 1946, Nibert gave Talbott a written option which read: “For and in consideration of One Dollar, receipt of which is hereby acknowledged, and for other valuable consideration, I hereby grant and give W. G. Talbott, of Wichita, Kansas, an option for one year from this date to purchase the 28 shares of Padco Drilling Company stock which I own for the sum of 85,000. “This option may be exercised at any time during the following year and if not taken up before October 28, 1947, same shall become null and void.” The option was witnessed by D. J. Briggs. In December, 1946, the financial condition of the corporation required it to make a stock assessment. Nibert was unable to meet the assessment. In lieu thereof he surrendered five shares of his stock to the corporation in order to effect a release of the assessment lien on his stock covered by the option. At the time the corporate assessment was made Nibert and Talbott agreed the option price should be proportionately reduced as to Nibert’s remaining twenty-three shares of stock, thereby reducing the option price to $4,107.34. On that basis each share was evaluated at $178.58. Several conferences were had between Nibert and Talbott in which the value of the remaining twenty-three shares was discussed. At a conference for that purpose in January those present in addition to Nibert and Talbott were Briggs, Van Sickel, secretary of the corporation, and John Blood, a stockholder. Later in January, 1947, Nibert inquired of Talbott whether Talbott was going to take up the option and not make him wait a year for his money. In the same month Nibert granted Talbott a written proxy to vote the twenty-three shares of stock. The option contract was never revoked by Nibert. It was recognized as being in full force and effect and had been modified by the agreement of the parties to reduce the shares covered by the option from twenty-eight to twenty-three in order to meet the stock assessment made in December, 1946. On June 9,1947, Talbott exercised the option in writing and tendered $4,107.34 to Nibert, that being the value of the remaining twenty-three shares at $178.58 per share according to the agreement when the stock assessment was made. Talbott’s contacts with oil operators and business concerns had provided profitable drilling contracts for the corporation. He had personally paid off the $23,000 mortgage on the drilling rig. He had also procured drilling work for the corporation on leases in which he had an interest. The twenty-eight shares of stock at the time the — 141 — option was given in October, 1946, were worth $2,520 or $90 per share. Largely, if not entirely, by reason of Talbott’s investment, his business contacts and ability the shares of stock had increased in value somewhat in excess of $7,000 or $250 per share by the time Talbott exercised the option on June 9,1947. That valuation did not include some potential production of wells, the value of which was speculative. The facts thus far stated do not appear to be disputed but if there was any contrary evidence the conflict was resolved in favor of the plaintiff, Talbott, by the general judgment and also by the special findings of the court, as will presently appear. Although other defenses were originally pleaded by Nibert it was agreed by his counsel at the trial that only the following three issues remained for trial: (1) Nibert contended that prior to giving Talbott the option contract it was orally agreed that Talbott would not exercise it if Nibert refrained from interfering with the corporate management; (2) Nibert contended he had given the written proxy to Talbott to vote his stock with the previous oral understanding that if he gave it Talbott would not exercise the option; (3) in defense of Nibert’s breach of the option contract he contended he was not compelled to comply with it for the reason that no notice had been given to other stockholders of the corporation concerning the sale of the stock to Talbott, which notice Nibert claimed the bylaws (it is agreed he meant charter) of the corporation required. In response to an inquiry from the trial court counsel for Nibert conceded the burden of proof on those issues rested on Nibert. He accordingly assumed that burden and adduced his evidence first. Talbott demurred to that evidence. The demurrer was overruled. Talbott adduced his evidence. He had denied the alleged oral contract claimed by Nibert in No. 1 above and had objected to the competency of Nibert’s evidence pertaining thereto. The objection was sustained and that point will be treated later. The trial court admitted evidence touching the alleged oral contract mentioned in No. 2 above. The evidence was conflicting. The trial court expressly resolved that conflict against Nibert. The court made findings of fact and conclusions of law in which all issues were resolved against Nibert, as follows: “Findings or Fact. “1. On or about October 29, 1946, defendant Nibert executed and delivered to the plaintiff a written option to purchase Nibert’s 28 shares of stock in the Pabco Drilling Company for $5,000 on or before October 27, 1947. — 142 — “2. In December, 1946, five of Nibert’s 28 shares of stock were canceled by general corporate assessment. At that time Nibert and Talbott agreed the option price should be proportionately reduced as to Nibert’s remaining 23 shares of stock, thereby reducing the option price to 84,107.34. “3. There was no agreement or understanding between Nibert and Talbott that in consideration of Nibert’s granting Talbott a voting proxy in January, 1947, Talbott would not exercise the option. The option was never revoked by Nibert, but was still outstanding according to its terms on June 9, 1947 (except as modified by the December, 1946, agreement). “4. On June 9, 1947, Talbott duly accepted Nibert’s option-offer and exercised the option by written notice to Nibert. • “5. In October, 1946, 28 shares of stock in the Pabco Drilling Company were worth 82,520, or 890 per share. As of June 9, 1947, 28 shares of stock in said corporation were worth somewhat in excess of 87,000, or 8250 per share. No evidence was introduced by which the Court can determine the approximate amount of such excess value and the Court refuses to find such shares were worth 810,000 to 815,000 at that time. “6. It is equitable that the option contract be specifically enforced in accordance with its terms, and it would be inequitable to refuse to grant specific performance of said contract. , “7. The charter of the Pabco Drilling Company, Inc., contained the following provision: “ 'Statement of all or any of the designations and the powers, preferences and rights and the qualifications, limitations or restrictions thereof, in respect to any class (printed form to this point) stockholders of record shall have the prior right to purchase any stock offered for sale and any stockholder desiring to sell his stock in said corporation, or any part thereof, shall notify the President and Secretary in writing of his desire to sell, the number of shares and the price asked, and the Secretary on receipt of said notice shall immediately notify by registered mail, addressed to the last known address, or the address of record in the stock register, all stockholders of record, and any stockholder or stockholders desiring to purchase same may by exercising such rights purchase their prorata share of same within 30 days of the date of the notice given by said stockholder to the Secretary, and by depositing with the Secretary the amount of the price thereof, and upon failure of the stockholders or any of them to purchase same within said 30 days, said stockholder shall have the right to sell the same to any person.’ “8. No offer or notice of intent to sell Nibert’s stock has ever been made to the other stockholders, nor has there been given an opportunity to purchase their proportionate share of such stock in accordance with the provisions of the charter above set forth.” “Conclusions of Law. “1. The option contract of October 29, 1946, constituted a continuing offer by Nibert to Talbott to sell his stock in accordance with the terms of the option. “2. The option-offer, as modified by the December, 1946, reduction of price, was never revoked, and was valid and outstanding on June 9, 1947. — 143 — “3. Upon acceptance of the .option by Talbott on June 9, 1947, an enforceable contract arose whereby Nibert became obligated to sell his remaining 23 shares of stock in the Pabco Drilling Company to Talbott for $4,107.34. “4. The contractual consideration was not inadequate, nor are there any facts or circumstances rendering it inequitable specifically to enforce the contract of purchase. On the contrary, it is equitable that the contract should be specifically enforced according to its terms. “5. The charter provision imposing restrictions upon the sale of stock has no application to sales by one stockholder to another stockholder, and does not govern the sale by Nibert to Talbott. “6. The Court resolves all issues of law in favor of the plaintiff, Talbott, and against the defendants, and finds that a judgment should be entered specifically enforcing the option contract according' to the prayer in plaintiff’s petition. “7. Talbott shall pay to the Clerk of this Court the sum of $4,107.34 and Nibert shall thereupon endorse and deliver to Talbott his certificate or certificates representing his 23 shares of stock in the Pabco Drilling Company; whereupon the Pabco Drilling Company shall transfer said shares of stock to Talbott and issue to Talbott a new certificate therefor. “8. The costs of this action shall be assessed against and paid by the defendant Nibert. “9. Plaintiff has no adequate remedy at law.” The findings of fact are amply supported by the evidence. Counsel for Nibert now contends the option contract was without consideration; the burden should have been placed on Talbott; that the burden was on Talbott to prove the adequacy of consideration for the option contract and to show it was equitable to enforce it; that Talbott, as president of the corporation, who was familiar with the corporate affairs was bound to exercise the greatest good faith towards Nibert, a stockholder, who was not familiar with the corporate affairs with respect to the value of the stock. Touching the fiduciary relationship of the parties, last mentioned, we fail to find it was pleaded or raised below. In any event the record discloses the monthly records of the corporation were at all times available to all stockholders, including Nibert. Moreover, the evidence clearly shows the value of the stock was low at the time the option was granted; the consideration of $5,000 for the option contract was far in excess of the low value of the stock at the time the option was given; the value of the stock was again fully discussed by Nibert and Talbott, and others, at and immediately after the time the corporate stock assessment was made. We have already stated the issues which were presented to the trial court and that Nibert assumed the burden of proof. As stated, this action was tried by the court without a jury. The question — 144 — of the burden of proof relative to the issues now raised by Nibert became quite immaterial after all the evidence was before the court. Assuming the burden of proof on other issues now raised by Nibert rested on Talbott, the evidence in the record abundantly supports the trial court’s findings of fact. The recited consideration for the option contract was not only “One Dollar” but in addition thereto was “other valuable considerations.” It is conceded Talbott did not pay Nibert “One Dollar” at the time the option contract was executed. It is, however, evident the investment in money and services by Talbott, which was intended to and did increase the value of the stock to every stockholder, amply complied with the consideration mentioned in the contract, namely, “other valuable considerations.” Talbott performed for the benefit of Nibert as well as all other stockholders. Furthermore, even an option unsupported by initial consideration is, if accepted prior to its revocation, a binding obligation which may be enfoi'ced in equity. (49 Am. Jur., Specific Performance, §§ 117, 118.) To the same effect is Connell v. Kanwa Oil Inc., 165 Kan. 241, 194 P. 2d 950, where we said: “Where a party exercises an option by performance which benefits the other party the latter manifestly cannot repudiate the deal on the ground it was originally unilateral.” (p. 243.) Following, too, it is said in 12 Fletcher, Cyclopedia of Private Corporations, Perm, ed., 1932, § 5575: ' “It is well settled that the owner of stock may give another an option to buy within a certain time, and if the other accepts and agrees to buy within the time limited, the offer not having been withdrawn, there is a binding contract, even though the option was originally without consideration, which may be enforced in equity.” (p. 566 et seq.) Here Nibert gave the option in order to get Talbott to save and revitalize the corporation. Nibert knew he would benefit by the resulting increased value of his stock if Talbott did not,exercise the option. He undoubtedly also realized he might lose even the option value of his stock if he did not grant the option. These were all proper considerations which a court of equity could not well overlook. Assuming, therefore, the adequacy of the consideration for the option contract remained an issue for trial and that the burden of proof relative thereto rested on Talbott its adequacy is amply established by the evidence. We agree the court correctly concluded there were no facts that — 145 — made it inequitable to decree specific performance of the contract and that, on the contrary, it was’equitable to enforce it. On what theory is this equitable conclusion assailed? Nibert contends there was failure of compliance with a condition required to make a valid sale of the stock. His contention, in substance, is that he was not required to comply with his contract for the reason the corporate charter provisions set forth in the court’s findings of fact required a notice of his sale of stock to Talbott be given to the other stockholders of the corporation and that no notice was given in accordance with that provision. The trial court thought otherwise and concluded the charter provision did not apply to or govern a sale of stock from one stockholder to another stockholder. (Conclusion of law No. 5.) Assuming purely for the sake of argument that the provision did apply as Nibert contends and that it required such notice in the case of a sale by one stockholder to another stockholder in the same corporation, and assuming further, and again only for the sake of argument, that such a provision, if it existed, was valid, how could such facts possibly constitute a defense available to Nibert in this case? Who was required under this charter provision relied on by Nibert to initiate the proceedings to have such a notice given? It was Nibert, the seller of the stock, not Talbott, the purchaser. The charter provision on which Nibert relies required him to “notify the president and secretary in writing of his desire to sell, the number of shares and the price asked. . . .” Only after Nibert had performed that alleged condition, or requirement, could the secretary of the corporation give the notice of sale to other stockholders. Even if Nibert’s interpretation of the charter provision were correct it was he who, by his own default, prevented the completion of the transaction. We therefore find Nibert asserting his own default as a defense to a decree of specific performance. Manifestly, Nibert’s own default which prevented the completion of the transaction according to the charter, if it required notice, could not be asserted by him as a defense at law, much less in equity and good conscience. The only duty which would have remained for Talbott to perform in order to complete the transaction after the notice to stockholders, if such notice were necessary, would have been to pay for the stock he received. Nibert made it impossible for Talbott to perform that duty. — 146 — The rule is clear and well settled, and founded in absolute justice, that a party" to a contract canndt prevent performance by another and derive any benefit, or escape any liability, from his own failure to perform a necessary condition. (Dill v. Pope, 29 Kan. 289; Supply Co. v. Cement Co., 91 Kan. 509, 512, 138 Pac. 599; Briney v. Toews, 150 Kan. 489, 495, 95 P. 2d 355.) And this is the universal rule. (12 Am. Jur., Contracts, §§ 381, 386; 2 C. J., Agency, §439, p. 772; 13 C. J., Contracts, §§721, 722, 723; Restatement, Contracts, § 315.) In view of what has been said it is unnecessary to a decision in this case to determine (1) whether the charter provision in question applies to a sale of stock from one stockholder to another in the same corporation; (2) whether this charter was only intended to give stockholders priority to purchase in the event the stock was to be offered for sale to a nonstockholder; or (3) whether the charter provision constitutes an invalid restriction on the power of disposition if interpreted to apply to sales of stock by one stockholder to another in the same corporation. Nibert is representing only himself in this case and no other stockholders. Clearly, he cannot personally escape the performance of his contract with Talbott under the guise of endeavoring at this late hour to protect the rights of other stockholders. If their rights have been impaired by reason of this transaction they can assert them by such a remedy as they deem advisable. . When Nibert refused to carry out his contract Talbott filed the instant action to compel performance by Nibert. Talbott" directs attention to the fact that thereafter, and in order to indicate his good faith in the matter, he caused two letters to be written to the stockholders, informing them of the option contract and the pend-ency of the instant action to acquire the stock, offering to permit them to share pro rata in the purchase of the Nibert stock if they would also share in the expense of the litigation made necessary in order to acquire the stock, and that none of them deposited his pro rata share as provided by the charter. Nibert’s counsel contend those notices and offers did not conform to the charter provision and were insufficient and improper for other stated reasons. A determination of these contentions of the parties would not affect the conclusion we have reached on the merits of the case and we shall not pursue them. This brings us to a complaint concerning the exclusion of certain — 147 — oral testimony pertaining to the unqualified option which authorized Talbott to exercise it at any time within one year. Nibert contends the testimony he offered, that the option contract was given with the previous and contemporaneous oral understanding Talbott would not exercise it if he, Nibert, refrained from interfering with the corporate management, should have been admitted. The argument is that this evidence disclosed a conditional delivery, and was therefore competent, citing Griffith v. Marsh, 85 Kan. 693, 118 Pac. 879; Stroupe v. Hewitt, 90 Kan. 200, 133 Pac. 562; Bartholomew v. Fell, 92 Kan. 64, 139 Pac. 1016; Goutermont v. Bland, 99 Kan. 431, 162 Pac. 270; Wilhoit v. Seavall, 121 Kan. 239, 246 Pac. 1013; Mayse v. Grieves, 130 Kan. 96, 101, 285 Pac. 630. It will be observed the excluded oral testimony pertained to future performance of Nibert during the life of the option. It qualified the option by adding a new condition thereto and clearly changed its terms and legal effect. None of the cases cited supports the contention the oral testimony was competent. It is also well to remember this option had been exercised. When exercised before revoked it became a binding contract as previously shown herein. The contract was eligible to protection of the parol evidence rule. (20 Am. Jur., Evidence, § 1105.) The trial court properly excluded the-testimony. (Guaranty Co. v. Grabske, 111 Kan. 271, 207 Pac. 322; Hudson State Bank v. Haile, 130 Kan. 322, 325, 286 Pac. 228; Continental Supply Co. v. Morgan, 133 Kan. 121, 298 Pac. 790; Lanphear v. McLean, 135 Kan. 266, 10 P. 2d 889; Federal Farm Mortgage Corp. v. Bolinger, 152 Kan. 700, 705, 108 P. 2d 492.) This might well end the appeal. The trial court, however, passed squarely on the legal effect of the charter provision itself and we shall treat that point. At the outset, however, we desire to emphasize that we are concerned here solely with the instant charter provision and not with the abstract question of the validity of some provision of a wholly different character which all stockholders might have seen fit to adopt. It is true the trial court found no notice of the sale had been given as required by the charter. The court could not have found otherwise on the evidence. That finding does not mean the sale was void. How can that finding possibly aid the seller, Nibert? Clearly it cannot. That finding is not against the purchaser, Talbott. It is a specific finding against Nibert whose duty it was to— — 148 — and who alone could — initiate the proceedings to give notice of the sale, if such notice was in fact required in .the case of a sale from one stockholder to another. It must not be overlooked the court’s conclusions of law showed it expressly decided the charter provision did not apply to a sale of one stockholder to another and did not govern the instant case. If that be correct obviously no notice was necessary in order to make a valid sale, and the court so decided. The trial court may have reached its conclusion that the charter provision had no application to the instant case on more than one theory. It may have reached that conclusion from its interpretation of the charter provision itself, or it. may have reached that conclusion on the theory that if it was the intention of the charter to require notice in the case of a sale by one stockholder to another the requirement was void. The latter conclusion is squarely sustained by our own decision in Steele v. Telephone Association, 95 Kan. 580, 148 Pac. 661. It is not contended this court has overruled or modified that decision. It was there held such a requirement constituted an impairment of a stockholder’s right to dispose of his own personal property, his stock, and was void. It therefore follows the court’s conclusion that the sale was valid was correct irrespective of the particular theory upon which the judgment was based. So long as a judgment is correct the theory or reason on which it is decided is wholly immaterial insofar as a reversal on appeal is concerned. See Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 612, 185 P. 2d 158, and numerous cases there cited. But if the court’s conclusion was based on the interpretation of the charter itself, was the trial court wrong in that interpretation? Obviously it was not. Notwithstanding the fact that some other courts uphold restrictive charter provisions, agreed upon by the stockholders, 'which require a notice of sale to all stockholders where one stockholder sells his stock to another stockholder, it is generally held the restrictive provision must specifically state that a notice is required under those particular circumstances. (Guaranty Laundry Co. v. Pulliam, 198 Okla. 667, 181 P. 2d 1007 [1947], and see numerous cases cited therein, p. 669.) Restrictive charter provisions concerning sales of stock are ordinarily employed to keep the association intact and to prevent transfer of stock to “outsiders,” nonstockholders, who might enter the corporation to gain information concerning it for their own sel — 149 — fish ends and to use it against the best interests of the corporation. Such restrictive provisions pertaining to nonstockholders are valid. Absent a clear and specific charter provision which compels an interpretation that notice is required to other stockholders in case of a sale by one stockholder to another stockholder courts generally construe such provisions to mean that stockholders are to be given an opportunity to purchase the stock only before it is offered to “outsiders,” nonstockholders. A few of the numerous cases so holding are Rychwalski v. Milwaukee Candy Co., 205 Wis. 193, 236 N. W. 131; Serota v. Serota, 5 N. Y. S. 2d 68; Gibbon v. 3920 Lake Shore Drive Building Corporation, 310 Ill. App. 385, 34 N. E. 2d 109; Mason v. Mallard Telephone Co., 213 Iowa 1076, 240 N. W. 671; Sterling Loan & Investment Co. v. Litel, 75 Colo. 34, 223 Pac. 753; McDonald v. Farley & Loetscher Mfg. Co., 226 Iowa 53, 283 N. W. 261, 263. The instant charter did not specifically or clearly deny the right of a stockholder to sell to another stockholder without notice to other stockholders. It is just as open, and it would seem far more so, to the interpretation that the priority referred to means that stockholders have a priority over outsiders to purchase the stock. The trial court, in view of the overwhelming weight of authority properly concluded the charter did not apply to or govern the instant sale. In view of our own decision in the Steele case, supra, it is clear that in the absence of a contrary later decision, and we have none, or contrary legislation on the subject, the instant charter would be void if interpreted to require notice to all stockholders in case of a sale of stock by one stockholder to another stockholder. With the decision in the Steele case before the legislature what did that body do when it enacted the 1939 corporation code? The answer is clear. It provided that a charter might contain a provision denying the right of sale to nonstockholders before the stockholders had an opportunity to purchase. That legislation itself shows the legislature did not intend to disturb the decision in the Steele case but actually intended to conform its legislation thereto. In G. S. 1947 Supp. 17-2802 the legislature provided what articles of incorporation should set forth. That statute is not drawn into question in this case. In G. S. 1947 Supp. 17-2803 the legislature stated what provisions might be set forth in the charter. Provisions thereof stressed by the parties are: — 150 — “The articles of incorporation may also set forth: “B. Any provision which the incorporators may choose to insert for the management of the business and for the conduct of the affairs of the corporation, and any provisions creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders, or any class of the stockholders, or, in the case of a corporation which is to have no capital stock, of the members of such corporation; provided, such provisions are not contrary to the laws of this state. “E. A provision to the effect that no stockholder of the corporation shall ever own, or vote as owner or by proxy, or both, to exceed a certain percent of the capital stock of such corporation. “F. A provision reserving to the corporation and existing shareholders the right to purchase and acquire the stock of a selling stockholder before sale to a nonstockholder.” Nibert contends “B” empowered the corporation to enact a charter provision which would require an offer of the sale of stock to all stockholders before selling it to one or more stockholders. Assuming it would be possible to so interpret “B,” with which we cannot agree, it already has been demonstrated the corporation did not enact a charter provision having that effect. We need, therefore, not discuss, in this case, the abstract question of the effect of a provision requiring notice if it had been enacted. Talbott contends in any event “B” was not intended to cover this particular subject as “F” specifically pertains thereto and covers it precisely. The latter contention is sound. If “B,” a section of general scope, had the effect contended for by Nibert it would permit a provision which would be contrary to and, therefore, nullify the specific provision permitted in “F.” It is well established that a statute relating to a specific thing takes precedence over a general statute which might be construed to relate to it. (Wulf v. Fitzpatrick, 124 Kan. 642, 261 Pac. 838.) The intent of the legislature must be ascertained by a consideration of all material portions of a statute or act and not from isolated portions thereof. (Rausch v. Hill, 164 Kan. 505, 508, 190 P. 2d 357.) It is the duty of courts, so far as practicable to reconcile various provisions in order to make them consistent and sensible. (Iola B. & L. Ass’n v. Allen County Commits, 152 Kan. 365, 103 P. 2d 788.) Applying these rules of construction the legislative intent seems evident. It is also well to note subdivision “E” of the above statute enables a corporation to enact a provision which would keep any stockholder — 151 — from owning or voting enough stock to control the corporate affairs. When the case was argued orally before this court we were advised this charter contained no such provision. Nibert had originally alleged the defense that Talbott was attempting to get control of the corporation and “freeze out” the minority stockholders. That defense was, however, withdrawn at the time of trial. In our opinion the- judgment of the trial court compelling specific performance of the instant contract was the only judgment which in justice and fair dealing could have been rendered. The judgment is affirmed.