Davidor v. Bradford

Dodge, J. We have no difficulty in finding support for the findings of tbe trial court, if not always in direct words of any witness, at least in tbe inferences reasonably deducible from tbe facts and situation shown; especially in view of tbe fact that tbe. plaintiff’s veracity stands impeached both by [527] undisputed proof of reputation and by intrinsic evasions and self-contradiction. The situation presented, then, is a joint enterprise rendered hopeless of profit by plaintiff’s failure and refusal to perforin his agreed duty therein. Thereby defendant was laden with a quantity of unsalable mining stock and confronted with the liability to pay $1,750 which could be considered only as loss. At this point either or both of two rules of law became applicable. The contract being breached in a respect rendering its accomplishment imposible, defendant had the right, nay owed a duty, to exercise due diligence to minimize his damages. Also, as one engaged in a joint enterprise, in effect a partnership, he was •entitled to use his best judgment and efforts to promote the welfare of that joint enterprise by disposing of the property thereof to the best advantage possible, and paying what was unavoidable to prevent further loss. Bradley v. Denton, 3 Wis. 557; Hill v. Palmer, 56 Wis. 123, 14 N. W. 20; Ward v. Am. H. F. Co. 119 Wis. 12, 25, 96 N. W. 388; Kelley, Maus & Co. v. La Crosse C. Co. 120 Wis. 84, 97 N. W. 674; Bates v. Lane, 62 Mich. 132, 28 N. W. 753; Lee’s Ex’x v. Dolan’s Adm’x, 39 N. J. Eq. 193. Even if the full time for plaintiff to perform his part of the contract had not expired, his deliberate declaration that he would not perform, either by marketing the mining stock or paying his half of the price, constituted such an anticipatory breach as gave the defendant a right to treat the contract as terminated and to take measures accordingly. Kelley, Maus & Co. v. La Crosse C. Co., supra; Merrick v. N. W. Nat. L. Ins. Co. 124 Wis. 221, 102 N. W. 593; Woodman v. Blue Grass L. Co. 125 Wis. 489, 103 N. W. 236, 104 N. W. 920; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780. The findings fully establish that the surrender of half of the mining stock at cost price was beneficial, and beyond any price obtainable by him -otherwise; hence it is not open to criticism, whether viewed as an attempt to minimize damages or an act by one partner un protecting the joint property and interests. [528] Prora tbe above-stated situation there doubtless resulted to-defendant a cause of action for damages by reason of plaintiffs breach of his agreement and also a right of action for contribution from plaintiff of one half of the expense necessarily incurred in the joint enterprise. Hill v. Palmer, supra. The adoption of the latter alternative by the court is favorable to plaintiff, for the evidence is clear that the-profits which would have resulted to defendant from performance of plaintiff’s agreement to sell the stock at thirty or thirty-five cents per share, and which defendant has lost by tbe breach, would have far exceeded the present recovery. Some contention is made that defendant breached the contract in that he never procured the actual issue to himself of a certificate for the 20,000 shares so that plaintiff could have it in his possession to make sales. To this there are two very sufficient answers: First, the evidence preponderates in favor of the agreement that the stock was to remain to the credit of the defendant upon the company’s books and to be-issued from time to time to any customers the plaintiff found,, in ceiffificates for the amount sold them; and, secondly, it was the plaintiff and not the defendant who was to procure-the assent of the company to the issue of 20,000 shares of stock upon défendant giving his notes for $1,150. Hence-there is in this no obstacle to defendant’s recovery. It is quite immaterial whether or not the judgment in this-case be considered as rendered upon, and supported by, defendant’s counterclaim, whether that be construed as an action at law for damages for breach of contract or a demand merely for a contribution from a partner, either in law or equity. The cause of action set forth in the complaint is-one in equity for the cancellation of plaintiff’s note, accompanied by an offer of such sum as the defendant may be entitled to from him. The answer sets up all the facts, as well by way of defense as of counterclaim; hence the rights of the parties arising out of the transaction were all submit [529] ted to tbe equitable jurisdiction of tbe court, and its decision tbat plaintiff should pay to the defendant one half of tbe expense incurred by him in this enterprise is with- sufficient propriety, and certainly without prejudice to tbe plaintiff, embodied in a judgment for tbe recovery of tbat sum, guarded, as tbat judgment is, by full provision for protection of plaintiff against all further liability on bis note, and for tbe transfer to him of one half of tbe 10,000 shares of stock held by tbe defendant for their joint interest whenever plaintiff shall pay. By the Court. — Judgment affirmed.