Pugh v. Gressett

Ethridge, J., delivered the opinion of the court. The appellee was complainant in the court below and filed his bill against the appellants, alleging that prior to the 1st day of October, 1922, the complainant was the owner of twrenty shares of the capital stock of the Meridian Chero-Cola Bottling Company, a corporation under the laws of the state of Mississippi, domiciled and doing business at Meridian, Miss.; that on or about the —■— day of September, 1922, the said T. N. Pugh and A. T. Howard agreed to purchase from the complainant the said twenty shares of the capital stock of said company and pay him therefor the sum of ten thousand dollars, four thousand dollars of which purchase price was to be paid upon delivery of the stock, and the remainder of the purchase price to be settled for in the note or notes of the defendants, to sbe executed in favor of the complainant in negotiable form, and of such dates of maturity as that said notes would pass in the usual channels of banks and banking* as negotiable paper. Complainant further alleged that, at the time he entered into said agreement with the defendants, he was a director and officer of said corporation, having the general management and control of its business at its place of domicile, and it was agreed and understood that he was to sever his connection with said corporation, and was to be succeeded in the active management thereof by the defendant A. T. Howard; it — 675 — being agreed and understood by and between tbe parties that the said contract and agreement would be executed and completed between the parties on or by October 15, 1922.. Complainant further averred that, after said agreement had been entered into verbally, on the 30th day of September, 1922, complainant received a letter from the defendant T. N. Pugh, as follows: “September 30, 1922. “Mr. J. B. Gressett, Meridian, Mississippi— D'ear Joe: Howard and myself made the trade O. K,, and he will be over there Wednesday morning to take charge, and if he wants you to stay with him a few days I will appreciate it if you will. I will be over the latter part of the week, or anyhow by the time Mr. Simpson gets back from his trip, to straighten everything up. “Yours truly, “T. N. Pugh.” Later on, to-wit, October 2, 1922, the defendant, T. N. Pugh, wired to complainant the following message: “Columbus, Miss., October 2., 1922. “J. B. Gressett, Meridian, Miss. “Everything O. K. Howard will be there Wednesday morning. “T. N. Pugh.’? Complainant further alleged that the above letter and telegram were written in connection with the agreement between the complainant and the defendants, whereby the defendants were to purchase complainant’s said shares of stock in said corporation for the sum of ten thousand dollars, to be paid for as stated, and that complainant was to surrender the control of said business of said corporation to said Howard. Complainant further alleged that on October 4, 1922, the said Howard, defendant, then being in Meridian for the purpose of taking active charge of the business and management of said plant, and at a time when said de — 676 — fendants. liad not paid to complainant the purchase price for said stock, complainant had a conversation with said T. N. Pugh by long-distance telephone, said Pugh then being in Clolumbus, Ga., and complainant being in Meridian, Miss.; the substance and purport of said telephone conversation being that complainant would not surrender the management and control of said corporation unto said Howard without the trade for his stock being fully consummated, and that said Pugh then, during the course of said conversation by telephone, assured complainant that he would be in Meridian in the next few days, and would complete the trade for the said stock, and in order that there might be no misunderstanding or doubt about the matter he would send to complainant on said date a telegram confirming] said conversation; said telegr'am reading as follows: ‘ ‘ Columbus, Georgia, October 4, 1922. “J. B. Gressett, Meridian, Mississippi. “Howard comes to Meridian today to take charge of the affairs of the company in line with agreement. Also we are to buy your stock for ten thousand dollars. Terms to be agreed on by October fifteenth. “T. N. Pugh.” In response thereto complainant sent said Pugh the following telegram: “Meridian, Miss., Oct. 4, 1922. . “T. N. Pugh, Montgomery, Alabama. “Telegram received. I confirm sale twenty shares Meridian Chero-Cola Bottling* Company stock to you for ten thousand dollars. Terms and payment to be árranged negotiable by October fifteenth. “ J. B. Gressett, Jr.” C'ompainant further alleges that A. T. Howard was then present at Meridian at said Chero-Cola plant, and was fully advised of all that was transpiring* between the complainant and the defendant Pugh, and fully agreed on his part to all the terms and conditions of said trade, — 677 — and assured complainant that the purchase price agreed upon between the parties for the said twenty shares of capital stock would be paid as soon as A. B. Simpson, the vice-president of the First National Bank of Meridian, returned home; he then being absent, and it being thought he would return to Meridian prior to October 15, 1922; that oompainant being thus assured that the defendants were acting in good faith with him, he in good faith surrendered to the defendants, A. T. Howard and T. N. Pugh, full control and management of said Meridian Chero-Cola plant, and surrendered his position and office as general manager and superintendent, and that in a few hours thereafter the defendants began to be contentious about the trade and insisted that complainant should accept less than ten thousand dollars. Complainant then avers he was induced to surrender the control < and management of said corporation by said conduct of the defendants and their agreement to' pay to complainant the sum of ten thousand dollars in the manner hereinbefore set out.' Complainant further avers that defendants took into their possession and began the active control and management of the affairs of said corporation as an integral part of their agreement to pay to him the sum of ten thousand dollars for said capital stock. He further avers that they failed and refused to pay to complainant the said sum of four thousand dollars in cash, and refused and neglected to execute their notes for the balance of the purchase price of said capital stock, or do anything towards carrying out said agreement, save the taking over from him of the aetive control and management of the business affairs of the corporation. Complainant further avers that, notwithstanding the agreements and obligations of said defendants, and notwithstanding the 15th day of October, 1922, had passed, said defendants and neither of them had paid to complainant the sum of four thousand dollars in cash, or any part thereof, or — 678 — tendered to him their negotiable notes for the sum of six thousand dollars, or for1 any other sum. Complainant further avers that he tendered performance of said contract in full on his part, and has actually performed part of said contract by surrendering to said defendants the entire management and control of the affairs of said corporation, and has been and is now ready, willing, and able to deliver to defendants a complete and perfect transfer of said twenty shares of the capital stock in said Meridian Chero-Cola Bottling Company, and hereby tenders full performance of each and every part of said agreement which he is required by the terms of said agreement to pex-form, axxd prays that defexxdaxits be summoned to answer the bill, and that on final hearixxg the court will render a decree ixx favor of complainant and against defexidants for1 the sum of texi thoxxsand dollars and all costs, and prays for general relief. The defexidants answered the bill and admit that prior to the 1st day of October, 1922., the complainant was the owner of said twexxty shares of capital stock as alleged in the bill, admit also that complainant was a director axxd officer of said company, and had entire control and management of said business at its said place of domicile, axid aver that complainant kept all the books of said corporation, axid was fully familiar with and well knew the financial condition and status of said corporation, and knew the indebtedness due by said corporation, and ivas fully informed as to all of the financial circumstances, coxidition, and status of said corporation oxi and pxior to and during the months of September and October, 1922, and well knew such coxidition for a long time prior thereto. Defendants further chai'ge that complainant was the only officer and stockholder of said corporation, having entire charge of said corporation, attending to its affairs in the city of Meridian, and aver that neither of the defendants knew of the condition of said corporation as to its financial -status, and what it owed, and what was due — 679 — and owing said corporation at the beginning' of the negotiations for the sale of complainant’s said twenty shares of stock in said corporation. Defendants deny that they or either1 of them purchased of the complainant his said twenty shares of stock in said corporation as averred in the bill of complaint. Defendant Pugh represents nnto the court that the facts and matters concerning said negotiations averred by the complainant, Gressett, were not as stated in the bill of complaint, but charges that on the-day of September, 1922-, the said complainant, approached the defendant Pugh and told him that he was anxious to sell his twenty shares of capital stock in said corporation, and that, if said Pugh could get him a purchaser, he would retire from the control and management of said corporation; that said Pugh then entered into eonversar tion with complainant regarding the sale of said stock, and upon inquiry from said Pugh the complainant represented and warranted that said corporation did not owe exceeding five thousand dollars for merchandise, supplies, equipment, etc., and that same was the total amount owed by said corporation, exclusive of the amount that the corporation owed to hanks for borrowed money; that the defendant Pugh, although president of said corporation, resided in Montgomery, Ala., and was not familiar with the financial condition of said corporation, as the same was entirely intrusted to the complainant, and, having confidence in the complainant, the defendant Pugh believed all that complainant told him with reference to the financial condition of said corporation; that upon these warranties and representations the said Pugh told the complainant in good faith that he thoug'ht he could probably get the defendant A. T. Howard to buy the stock and assume control of the plant, and that he would take the matter up with the defendant Howard, who was then living at Columbus, Miss.; that the defendant Pugh relied entirely upon said representations, and w.arrantiqs, — 680 — and made no investigation as to the financial condition of said corporation, and shortly thereafter went to Columbus, Miss., to. see the defendant Howard, with & view of communicating to him the. representations and warranties of the complainant, Gressett, and the offer of the the said Gressett to sell his. said capital stock in said corporation for the sum of ten thousand dollars upon said representations and warranties of the financial condition of said corporation; that, the defendant Pugh did go to 'Columbus, Miss., and communicate with the défendant Howard and in said communication he stated that Gressett offered to sell his entire twenty shares of capital stock in said corporation for ten thousand dollars, and stated to' said defendant Howard that the complainant, Gressett, represented and warranted to him that said corporation did not owe an amount exceeding five thousand dollars, that, being the total amount of indebtedness due by said corporation for merchandise, equipment, supplies, etc., exclusive of the money borrowed from the banks; that the defendant Howard then agreed to come to Meridian with the defendant Pugh, to; have a conference with Gressett, and shortly thereafter1 did come to Meridian and have a conference with the complainant, and that complainant in the presence of both the defendants offered to sell his twenty shares of the capital stock of the said corporation and retire from .the management and control of said business, and did then and there represent and warrant again the financial condition of said corporation as above stated; that thereupon the defendant Howard told the complainant that he and Pugh would go back to Columbus, Miss., as the said defendant Howard wanted to talk the matter over with his sister and brother, and that he would give complainant an answer regarding same after he had talked with them. Thereafter, the defendants relying upon the statements made by the complainant with reference to the financial condition of said corporation, and in the utmost confidence — 681 — of said -warranties and representations made by said complainant, after they had gone to Columbus, Miss., the defendant Pugh sent the complainant a letter as detailed in said bill of complaint, and sent said telegram as detailed therein. Defendants further state that on the 4th of October, 1922, the defendant Howard came to Meridian, it being the object and purpose of the said Howard at that time to consummate the trade for the said capital stock of complainant upon the representations and warranties made by said complainant, Gressett, as to the financial condition and status of said corporation, and he went to the said plant of said corporation and met Gressett, the complainant, and talked with him about the matter, and that complainant again represented and warranted to the defendant Howard that the corporation did not owe exceeding five thousand dollars,-that that was all the money said corporation owed exclusive of the money owed to the banks for borrowed money; that complainant further represented and warranted ti> the said defendant Howard that upon the sale of said stock he, the said Gressett, would retire from the management and control of said business; that after said conference, and without any sale being agreed to or being consummated, the said Howard, defendant, made some investigation in the city of Meridian in regard to the corporation, and upon such investigation] became doubtful about the truth of the representations made by the .complainant as to the indebtedness due by said corporation, and upon informing the complainant about the same the complainant admitted he had not. represented the matter as it was as to the indebtedness, and that said corporation did owe more money than he had represented and warranted as above. It is further alleged in the answer that the complainant well knew that he was making false and fraudulent representations and warranties regarding the financial con — 682 — dition of said corporation as to the debts due and owing by same, for the purpose of misleading and deceiving the defendants and for the purpose of inducing them to buy said capital stock in said corporation, and that complainant at the time was fully aware of the financial condition of said corporation and knew that it owed debts in a sum far in excess of the said amount represented and warranted by him as above set forth. Defendants allege further that there was no tender' of stock by the complainant, nor were any negotiations concluded and trade consummated as averred in the bill of complaint. Defendants further deny any practice of fraud upon the complainant in said transaction, and further deny that complainant put Howard in charge of the plant, and charge as a fact that complainant did not put Howard in control thereof. Defendants further plead the statute of frauds of the state. There was an application by the complainant to amend, so as to allege a subsequent agreement signed by Howard in the name of the Ghero-Cola Bottling" Company, by himself as manager, to pay eight thousand dollars for the said capital stock, but the court declined to permit said amendment. There is considerable difference in the testimony of IGressett, complainant, and the defendants as to the conversations which took place in reference to the said sale, the chancellor in his decree finding for the complainant-in the sum of ten thousand dollars, and the complainant’s version will have to be accepted by this court as being true and will have to determine the matters as though the facts testified to by him were true, there being such a conflict as in the opinion of the court would make it binding upon this court to accept the findings of fact by the chancellor. We will first take up the question as to the statute of frauds; it being contended that the writings above set out are insufficient under the law to constitute a con — 683 — tract, because it is claimed by the appellants that the terms of the contract are not sufficiently set forth or agreed upon in the letters and telegrams passing between the parties, and it being- further the contention of the appellant that the oral conversations in the negotiations cannot be considered for the purpose of aiding or enlarging the written contract. After a thorough consideration of the matter the court is of the opinion that the case does not come within the statute of frauds, for the reason that the surrender of the control and management of the plant by the complainant and the acceptance and taking charge by the defendants was such a part performance of the contract as would make the statute inapiplicable. It appears from, the evidence of the complainant that the corporation had a capital stock of ten thousand dollars and that he bought two-tenths of said capital stock, paying therefor ten thousand dollars, and that he was the manager and had charge under said contract of the affairs of the corporation, and was to receive and did receive, prior to the making of said arrangement, three hundred dollars per month salary therefor. It further appears from his evidence that Mr. Pugh approached complainant about the matter and stated that the parent company at Columbus, Ga., was dissatisfied with the management of the company at Meridian, and that it would not advance further money and advertise the business at Meridian as it was accustomed to do, unless there was a change in the management; that complainant stated to Pugh that in that view he would be willing to sell his stock and surrender the control if he could get fifteen thousand dollars for it; that Pugh stated that the stock was not worth that, and he would not pay it; that complainant then said he would not surrender control without a lawsuit, and that whoever bought the plant or the stock would buy a lawsuit; that after considerable discussion said Pugh said he might interest the defendant — 684 — Howard, at Columbus, Miss., in the matter, and after-wards be did go to Columbus, Miss., and take up with Howard the proposition and got Howard interested, and\ as a result that Howard came down and inspected the plant and agreed to take the proposition. Complainant denies that he represented or warranted that there were no debts in excess of five thousand dollars owing by the Chero-Cola Bottling Company, but avers that he expressed the opinion only that five thousand dollars would cover the amount of indebtedness outside of the amounts due the banks for borrowed money. It seems to us that the negotiation between the complainant and the defendants was not merely to sell or buy the stock involved, but that one of the considerations, and perhaps the leading consideration, influencing all of the parties was the giving up by the complainant of the management and control as manager, and on the part of the defendants was to procure the control of the plant and business, and to have full control and management thereof, and to eliminate complainant’s connection therewith. The case of Ford v. Howgate, 106 Me. 522, 76 Atl. 939, 29 L. R. A. (N. S.) 734, illustrdtes the principle governing in cases like this. In that case it was held that a contract for sale of unissued stock in a corporation and an interest in an automobile was taken out of the statute of frauds by entering into possession of the business, with the other owners, carrying it on as contemplated by the contract, and taking and using the automobile as one of the owners. In the opinion the court said: ' “It was urged, among other defenses: (1) That the alleged agreement was void under the statute of frauds; and (2) that the plaintiff could not recover without delivery or tender to the defendant of a certificate of the shares of stock. Section 4, chapter 113, Rev. St., commonly known as the ‘statute of frauds,’ provides: ‘No contract for the sale of goods, wares, or merchandise, for — 685 — thirty dollars or more, shall be valid, unless the purchaser accepts and receives part of the goods, or gives something in earnest to bind the bargain; or in part payment thereof, or some note or memorandum thereof is made and signed by the party to be charged thereby, or by his agent. ’ The plaintiff did not contend at the trial that the subject-matter of the contrac of sale, comprising, as he claimed, his ownership of the( shares of stock in the corporation and his interest in the automobile, was not ‘goods, wares, or merchandise,’ within the meaning of the statute of frauds. Such claim, if made, would have been without support in reason or authority. Pray v. Mitchell, 60 Me. 430. “But it'was the plaintiff’s theory that, although the oral contract of sale was within the terms of the statute, nevertheless it had been taken out of the operation and effect of the statute by reason of a compliance with the provisions of the exception that, if ‘the purchaser accepts and receives a part of the goods,’ the contract is valid and enforceable. Upon this branch of the case the presiding justice, instructed the jfiry ‘that although all the right which Mr. Ford had in the business was his shares, it being a corporation, nevertheless it was a corporation in which he was acting as men do with their own property, and he and Mr. Wentworth had been operating it. It was a business, and the sale of the interest in the business, gave Mr. Howgate an equitable right to have the stock delivered to him; and if he went into possession of the business under the trade which he claims, and took part in it as owner, it was an executed contract. 'It was all- done; nothing to be done.nxcept to pay. And when a contract has been executed and completed — finished!—and the parties have gone into' the business, carrying it out, then the statute of frauds does not apply.’ In respect to the effect of an acceptance and receipt of the automobile by defendant, as claimed by the plaintiff, the presiding justice said: ‘And the plain — 686 — tiff claims in this ease that the automobile was physically accepted, that is, the defendant Iiowgate took it into his possession; not into his sole possession; because it was only an undivided interest in an automobile that he bought anyway, but that he took it and used it as one of the owners. If he did, then that would be an acceptance of it, and an acceptance of a part of the whole thing that was furnished — interest in the business and automobile —and'that would take it out of the statute of frauds also. So that upon the plaintiff’s theory that the defendant made the trade and went into the execution of it by taking the- business, or taking his part of the .business, the statute of frauds does, not apply.’ “Summarizing his instructions as to the statute of frauds as a defense, the justice said: ‘And it comes back, so far as those legal defenses are concerned, to the proposition which I stated earlier; that, if the trade was made as the plaintiff claims, the interest in the business and the half interest in the automobile were sold at an agreed price of one thousand dollars and the defendant Howgate entered into the possession of the business with the other man, running it as an owner, carrying it on as contemplated by the contract, and took the automobile in the same way, then he must pay what he agreed, so far as. any evidence in this case is concerned. ’ “The defendant contends, in support of his exceptions, that the instructions given did not sufficiently distinguish the plaintiff’s interest in the business, being only an intangible right of ownership in the shares of stock in the corporation, from an ownership in the physical property of the corporation, and for this reason the jury were permitted to conclude, and naturally did conclude, that if the defendant went into possession of the business of the corporation with Mr. Wentworth he thereby physically accepted and received the plaintiff’s ‘interest in the business, ’ which was the subject of the sale, and thereby the exception in the statute was necessarily complied with. — 687 — We do not think the instructions are open to that objection. The theory on which they were given is that, because the plaintiff’s interest in the business was only the intangible right of ownership of the shares of stock, for which no certificate had ever been issued, the contract of sale gave the defendant all and the same right to the ownership of those shares which the plaintiff before had, no act on the part of the plaintiff remaining to be done, and if the defendant, on his part, accepted that contract, and used and enjoyed the privilege and benefits it was intended to afford him, then the contract became executed, and for that reason the statute of frauds was not applicable to it.” Davis Laundry & Cleaning Co. v. Whitmore, 92 Ohio 44, 110 N. E. 518, Ann. Cas. 1917C, 988, was also a case in, which the laundry company was. a corporation capitalized at two1 hundred fifty shares of the par value of one hundred dollars each, of which the plaintiff owned one hundred twenty-six shares, the balance outstanding in the names of other parties. Another laundry company doing a kindred business desired to purchase all of the shares and executed to plaintiff the following mernorandum. of agreement: “We agree to purchase one hundred twenty-six shares of Ideal Laundry stock for five thousand five hundred dollars, and the balance of one hundred twenty-four shares at fifty dollars per share, from F. 0. Whitmore. [Signed] The Davis Laundry Company, per E. W. Sloan.” There was no time fixed for the delivery of such shares, and it was verbally agreed that delivery should be made at a local bank, and that the buyer should assist in obtaining the outstanding shares. On February 21, 1910, the seller had deposited in the bank his own one hundred twenty-six shares and had obtained one hundred sixteen of those outstanding, at which time he notified the defendant of this fact, and that the remaining — 688 — eight shares would he delivered in a very short time. On January 31, 1910, the buyer took possession of the plant and assets of the Ideal Laundry Company and operated the same for a period of two weeks. On F'ebruary 28, 1910, the seller had secured the entire two hundred and fifty shares and deposited them with the local bank for delivery, and so notified the buyer. On February 16, 1910, the buyer yielded possession and repudiated the contract. The plaintiff recovered, and the court affirmed the judgment. The court held that shares of stock were personal property. The court then said (92 Ohio, 52, 110 N. E. 521, Ann. Cas. 1917C, 991): “The record in this, case discloses that the buyer, through its officers, took charge of the kindred laundry company,- its plant and all its assets, and operated the same for a period of about two weeks’ time or more; that while in the possession and operation of this -plant, and at the time they repudiated the contract of purchase, they had knowledge of the fact that all but eight of the two hundred fifty.shares of stock were in the possession of the bank ready for delivery, and the remaining eight shares would be available in a very short time. “Section 8384 (1), General Code, supra, provides that verbal contracts 'shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold.’ Subdivision 3 of that section provides that 'there is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct’ his assent to becoming the owner of those specific goods.’ Under the facts stated it was for the jury to’determine whether or not the acts and conduct of the defendant in the possession and operation of the’ plant were of such character as to show an acceptance under the contract of two hundred forty-two shares of stock that had been deposited with the National Bank of Commerce for delivery to the defendant.” — 689 — The court then quotes the above case of Ford v. Howgate, 106 Me. 517, 76 Atl. 939, 29 L. R. A. (N. S) 734, and says: “In the absence of time stipulated in the agreement for the delivery of shares of stock, the plaintiff had a right to a reasonable time to procure such delivery. By its letter of F'ebruary 16, 1910, the defendant undertook to say that they had waited a reasonable time for the delivery of this stock and repudiated the agreement. The question whether the time was a reasonable one or otherwise, at the time of repudiation, was a fact to be determined by the jury under all the circumstances of the case.” . We will next notice the contention of appellants, that the complainant’s statement that five thousand dollars would cover the indebtedness of the corporation other than money borrowed from the banks was a fraudulent representation or warranty. The complainant’s version of the case was the expression of an opinion, and that he did not represent anything to Howard about the matter; that is, that the conversation with Pugh was nothing more than the expression of an opinion, and that Pugh was president of the corporation. We think it was the function of the chancellor as a trier of facts to determine whether it was a representation or a mere expression of opinion, and it was also his function as a trier of facts to determine whether the complainant made' such statements to Howard. The appellants proceed upon the theory that Pugh’s admitted representation to Howard was binding upon the complainant, because they insist that Pugh was acting as agent for the complainant in selling the stock to Howard. In our opinion that assumption is not supported by the record. Gressett’s testimony and the correspondence show that Pugh and Howard were dealing with Gressett, and not that Pugh was dealing with Howard for Gressett. The chancellor1 had a right to accept Gressett’s — 690 — version of the matter, and if we take his evidence as true it would certainly appear that Pugh was not representing him in the deal. We think the whole transaction shows that Pugh was a joint purchaser in this' arrangement- with Gressett. It does not clearly appear what the relation between Pugh and Howard was as to each other, but it does appear that they were buying’ from Gressett, and intended to get rid of Gressett as manager, as well as to secure his stock in the corporation. We will next take up the contention that there was no contract of'meeting of the minds of the parties on any definite terms, so as to make a completed contract. Appellants, earnestly insist that there never was' any agreement which would constitute a binding contract regardless of the statute of frauds. The testimony shows that Gressett’s proposition was that he would take four thousand dollars in cash, and that he would undertake to-carry the balance if they could not procure all cash. The defendant Pugh, writing to Gressett in the letter, set out above, says: “Howard and myself made the- trade O. K., and he will be over Wednesday morning to take charge-. . . . I will be over the latter part'of the week, or anyhow by the time Mr. Simpson gets, back from his trip>, to straighten everything up.” And in the telegram of October 2, 1922, he says: “Everything O. K. Howard will be there Wednesday ■ morning. ’ ’ Then after a conversation over the telephone between Pugh and Gressett, Pugh sent the following telegram on October 4, 1922: “Howard comes to Meridian today to take charge of - the affairs of the company in line with agreement. Also we are to buy your stock for ten thousand dollars. Terms to be agreed on by October fifteenth.” The telegram refers to some agreement, and the contract it refers to is to be in line with the agreement. It — 691 — was held in Mercer Electric Mfg. Co. v. Connecticut Mfg. Co., 87 Conn. 691, 89 Atl. 909, that the fact that some of the terms of an offer were stated in a conversation would not make the offer indefinite or uncertain, since it was capable of precise ascertainment. Therefore to find out what the agreement was referred to in the telegram we must have recourse to the evidence. In this telegram it is clearly stated that “we are to buy your stock for ten thousand dollars.” The amount of the purchase was full and specific; the terms to be agreed on by October 15, 1922. Now, when we refer back to the agreement as disclosed by Gressett’s evidence, we get precisely what the terms weye; that is, they were to execute their notes for the six thousand dollars. It is true that there is some uncertainty as to exactly how long the notes would run, or precisely how they would be executed, but they were to be carried under the agreement by Gressett. Under this agreement the appellants bound themselves to execute notes, and Gressett bound himself to accept such notes. That was the verbal agreement. Gressett’s reply to the telegram. “I confirm sale twenty shares Meridian Chero-Cola Bottling Company stock to you for ten thousand dollars, terms and payment to be arranged negotiable by October fifteenth,” shows his interpretation of the contract, and, as that letter was acted upon in taking charge of the plant, we must construe the matter in the light of the evidence and in his telegram of acceptance, and the appellants must be assumed to have acquiesced in this interpretation, because after receiving it they took charge and remained in charge of the business until the filing of the suit. In 13 Corpus Juris, 268, under the head of “Intention Capable of Ascertainment,” it was said: “If, with the aid of the usual tests and principles of construction, the court is able to ascertain and to enforce the intention of the parties, their agreement will not be held uncertain. So an agreement drawn up by illiterate — 692 — persons will not be held unpertain, if it is possible for the court to ascertain their meaning. While a contract, incomplete on its face, may thereby be ambiguous, it is not necessarily void. Absolute certainty is not required. That is certain which may be rendered certain, according to the maxim, ‘Id oertum est quod cetum reddi potest.’ A promise not in itself certain may be rendered certain by a reference to something certain. An offer to sell goods need not specify the price, for, if no price is stated, it will be presumed'that the reasonable market price was intended. And in other like cases, when the terms-' are not absolutely certain, it is held that the parties have in effect referred the matter to a court or jury in case they disagree about it themselves.” In 13 Corpus Juris, p. 271, it is said: “Section 62. There are many terms not actually expressed in the offer which are implied by law and which are as binding on both parties, after acceptance as though actually spoken or written into the contract. A contract, it may truly be said, includes, not only what the parties actually write down or say, but all those things which the law implies as part of it, and likewise all matters which both the parties intend to express, but do not. “Section 63. Every trade, business, or calling has its usages, and persons who make offers relating thereto assume that all the customary incidents of such callings shall be part of the agreement, and hence do not expressly refer to them. Although unexpressed, they are implied terms of the contract; and this is true in the case both of written and oral contracts.” In case of Joy v. City of St. Louis, 138 U. S. 1, 8, 43, 11 Sup. Ct. 243, 34 L. Ed. 843, the supreme court of the United States, dealt (with a case of a contract between two railroad companies and the city of St. Louis, said agreement being made by the park commissioners on behalf of the city of St. Louis, and said agreements being-tripartite agreements between the park commissioners — 693 — and the two railroad companies, whereby the right of way through the park was granted to one of the railroad companies, which covenanted to permit other railroads to use such right of way upon such terms and compensation “as may be agreed upon by such companies.” It was insisted there that the contract was uncertain because the agreements were thereafter to be made and were not expressed in the contract. At page 251 of the Supreme Court Reporter the court said: “ ‘Said party of the second part shall permit, under such reasonable regulations and terms as may be agreed upon, other railroads, to use its right of way through the park and up to the terminus of its road in the city of St. Louis, upon such terms, and for such fair and equitable compensation to be paid to it therefor, as may be agreed upon by such companies.’ It is to be construed in connection with paragraph 12 of the same agreement. In regard to these two paragraphs, the opinion of the circuit court says: ‘It- will be observed that by the ninth paragraph the county road agreed to permit the use of its right of way by other railroads. Whether a like obligation was. assumed by the Kansas road depends upon the last sentence in the twelfth paragraph, which purports to grant to the Kansas road the right to occupy and enj'oy the right of way through the park jointly with the County road ‘ ‘ on the terms of the said contract between them, and under the same terms and conditions as are hereby and hereinbefore imposed upon said party of the second part, and which are hereby assumed by said party of the third part as to improvements, except as to building a depot and switch' in said park, which the party of the second part is to do itself. ’ ’ It must be conceded that the meaning of this language is not perfectly clear. It is claimed by the defendants, that the words “as to improvements, except as to building,” etc., qualify, not only the immediately preceding clause, commencing “and which are hereby assumed,” but also the — 694 — one prior, commencing “and under the same terms and conditions,” and therefore that the terms and conditions as to improvements are those alone cast upon the Kansas road. This would make the two clauses but a single compound one, qualified by the following- relative clause “as to improvements,” etc. As against this it must be observed that, grammatically, a relative clause generally qualifies its immediate antecedent, and therefore, in this case, would refer simply to that clause which provides for the assumption by the Kansas road. This natural grammatical construction is strengthened by the punctuation — a comma after the words “party of the second part” and none after the words “party of the third part,” which seems to separate the entire first clause from the second and its qualifying terms. I know that the matter of punctuation is never relied upon to defeat the obvious intent; but, when the meaning is doubtful, the punctuation is certainly a matter tending to throw light upon it. Further, there are not simply two, but really three, antecedent clauses, the first one being “the terms of the said contract between them”— that is, the two railroad companies. Very clearly this qualifying clause does not refer to. that, and therefore it should not be held to qualify the second, unless the obvious intent compels such construction. It is objected that the clause commencing- “and which' are hereby assumed” is, under this, construction, superfluous. I think not. These improvements called for the expenditure of money, and the idea seemed to be that the Kansas road should not only hold its rights upon certain conditions, but that, as to those involving expenditure of money, it should expressly assume the performance.’ ” At page 255 of the Supreme Court Reporter1 the court sai$: “It provides that the county company ‘shall permit’ other railroads to use its right of way. This is to be done ‘under such reasonable regulations and terms as — 695 — may be agreed upon,’ and ‘upon such terms, and for such fair and equitable compensation to be paid’ to the county .company ‘therefor, as may be agreed upon by such companies. ’ Not only are the regulations and terms to be reasonable, but the compensation is to be fair and equitable. ¡Although the statement is that the compensation is to be such ‘as may be agreed upon by such companies,’ yet the statement that it is to be ‘fair and equitable’ plainly brings in the element of its determination by a court of equity. If the parties agree upon it, very well; but, if they do not, still the right of way is to be enjoyed upon making compensation, and the only way to ascertain what is a ‘fair and equitable’ compensation therefor is to determine it by a court of equity. Such is, in substance, the agreement of the parties. The provision cannot be construed as meaning that, if the parties do not agree, there is to be no compensation, and that, because there can in that event be no compensation, there is to be no enjoyment of the right of way. In this view, it cannot be said that the court is making an agreement for the parties which they did not make themselves. Emery v. Wase, 8 Ves. 505; Milnes v. Gery, 14 Ves. 399; Gregory v. Mighell, 18 Ves. 328; City of Providence v. St. John’s Lodge, 2 R. I. 46; Dike v. Greene, 4 R. I. 285.” In the case of Chesapeake & O. Ry. Co. v. Herringer, 158 Ky. 267, 164 S. W. 948, an agreement was made between the landowner and the railroad company by which the railroad company agreed to put in a crossing for the landowner at a point to be agreed upon by the parties. It was held that this was not void because the element of reasonableness entered into it. At page 270, (164 S. W. 949) the court said: “The contract is not void because it is provided that the parties are to agree upon the location of the crossing, and Gilkerson is named as a representative of the company, who is to act for it. The third crossing is a part of the consideration for the things granted by the con — 696 — tract, and the railroad company cannot take the privileges granted and withhold the consideration. The substance of the contract is that ITerringer is to have the third crossing. Only the location of that crossing* is left undetermined. If the parties cannot agree upon an equitable and just location of the crossing, the chancellor must locate it for them. Slade v. City of Lexington, 141 Ky. 218-221, and cases cited. On the return of the case to the circuit court, it will be transferred to equity, and the court, on the evidence now in the record and such other evidence as either party may offer, will fix the point at which the crossing is to be placed, and give the railroad company a reasonable time to put it in.” See, to like effect, Miller v. Kendig, 55 Iowa, 174, 7 N. W. 500; Worthington v. Beeman, 91 Fed. 232, 33 C. C. A. 475; Burton v. Wells, 30 Miss. 688. In Burton v. Wells, 30 Miss. 688, the plaintiff sued the defendant upon a claim for fifty dollars and judgment was rendered for the defendant, and the plaintiff prosecuted his appeal to the circuit court, where judgment was rendered for the plaintiff below, and from which judgment the case was broughf to the court. The facts as stated by the court are as follows: Burton, the defendant below, and Wells, the plaintiff, purchased jointly a tract of land'from one Rowe, and paid each on account of the purchase the sum of fifty dollars,; Rowe at the same time, made them a deed for the land, and took the notes of each party for the balance of the purchase money. This deed not having been recorded, Burton afterwards proposed to Rowe to make to him (Burton) a deed for the entire tract of land; Rowe agreed to do so if Wells would consent to the arrangement. Wells, being approached on the subject, consented, on condition that Burton would take up the notes given by Wells, and would pay back to Rowe, for the benefit of Wells, the fifty dollars which had been paid. This answer was communicated to Burton,' who did not agree to pay back the fifty dollars, but only to — 697 — take up Wells’ notes. Eowe, however, made the deed as requested by Burton, which deed he then received. It is not shown by the evidence what became of the deed which had been previously made to Burton and Wells. "Upon this state of facts the question for decision is whether Burton, taking the deed from Rowe, knowing at the same time the terms prescribed by Wells as'the conditions upon which he (Burton) might take the deed to himself, must be understood as agreeing to those terms. It is true that Burton said -that he would not pay back to Wells the fifty dollars which he had paid; and it may be conceded that as a-general rule the law will not imply a promise, where the party has refused to make an express promise in regard to the same matter. But here the promise to pay the fifty dollars was the condition upon which Wells agreed that the deed might be made to -Burton. His right to the deed depended upon his willingness to perform the condition, and, if he refused to perform the condition, he must be understood, at the same time, as refusing to receive the deed. And the con-' verse of this proposition must be held as equally true: If he received the deed, he received it with the condition annexed by Wells, that he (Burton) should pay back the fifty dollars. He must be understood either as wholly agreeing, or disagreeing, to the condition. If wholly disagreeing, he, of course, declined receiving the deed; and, if wholly agreeing, he undertook to perform the conditions annexed by Wells. 1 So, in the case before the court, the defendants having accepted the plant and the management thereof, they, must pay the consideration which they agreed to pay. The defendants could not take charge of the plant and operate it, refusing to rescind after having knowledge of the debts which the company owed to restore the status quo ante, and escape their obligation imposed by the agreement under which they assumed charge and received the benefits of the possession and. management of the plant. — 698 — There are a number of other points presented, but we do not think they call for a response in this opinion. The judgment of the court below will be affirmed on condition that the appellee surrenders the shares! of stock to the defendants, it appearing* that he has offered to do so and they had declinéd to receive such shares. Affirmed.