Camp v. Simon

63 P. 332, 23 Utah 56, 1900 Utah LEXIS 83

• Court: Utah Supreme Court
• Decided: December 18, 1900
• Status: Published

Opinion

BASKIN, J.

This action is based upon a written contract entered into on the eighth day of March, 1892, by and between T. H. Camp and George W. Wiggins, parties of the first part, and the defendants, who are the appellants in this action. The contract is set out in full in the complaint, and is as follows, to-wit:

“Whereas, the undersigned are interested in the Union Stock Yards Company, of Salt Lake county, Utah, and are desirous of assisting the said company in securing money with which to continue improvements now in progress; and,

“Whereas, T. II. Camp, and G. W. Wiggins, both of Watertown, Jefferson county, New York, have agreed to subscribe and pay for one hundred and fifty shares of the capital stock of said Union Stock Yards Company:

“Now, therefore, in consideration of said subscription and payment by said Camp and Wiggins into the treasury of said company of the sum of fifteen thousand dollars, the par value of said stock, and in further consideration of the sum of one dollar to each of us in hand paid, we guarantee and covenant that we will pay or cause to be paid to the said Camp and Wiggins, a dividend of eight per cent per annum on the par value of said stock, for the term of five years from the twenty-first day of March, 1892, payable at the Jefferson County National Bank, of Watertown, New York; and we covenant and guarantee to pay or cause to be paid the said eight per cent dividend promptly each year as the same becomes’ due, for a period of five years.

“It is further covenanted and agreed by the undersigned that within ninety days of the expiration of the said five years, said T. H. Gamp and G. EL Wiggins, shall have the right and option to retain said stock at par value, without being required to make any further or other payment therefor than the original amount of their subscription and payment; or, they, the 'said T. EL Gamp, and G. W. Wiggins may at any time within the said ninety days from the expiration of the said five years, tender the said stock to the Utah National Bank of Salt Lake Oity, Utah (transmission by mail will be sufficient tender), duly assigned in blank for the benefit of the obligors upon this undertaking, and thereupon the undersigned covenant and agree to pay the said Camp and Wiggins the full sum of fifteen thousand dollars, with accrued interest from the time when the fifth annual dividend of said eight per cent was due and paid.

“And the undersigned further covenant and agree if said interest is not paid promptly at the time and place hereinbefore mentioned, that the entire principal and interest shall then and there become due, and upon tender of the stock to the said Utah National Bank, in the manner and for the purposes aforesaid, payment infull may be demanded and collected from the undersigned on this bond, for which payment of the principal sum of -fifteen thousand dollars, and the interest thereon annually at the rate of eight per cent per annum, which interest for the said term of five years, is to be paid or payment thereof secured as dividends on the stock aforesaid, well and truly to be made, we, the undersigned, hereby bind ourselves, our heirs, administrators and assigns, jointly and severally firmly by these presents.”

The following allegations of the complaint are not denied by the answer, and are therefore admitted, viz.: That the said defendants on the eighth day of March, 1892, executed and delivered to T. H. Camp and George W. Wiggins, said obligation in writing; that in pursuance thereof, the said Camp and Wiggins subscribed for the stock therein mentioned, and paid into the treasury of the Union Stock Yards Company, for said stock, the sum of $15,000; that no dividends have been paid or declared by the Union Stock Yards Company, or at all;, that after the first dividend was due on said stock pursuant to the terms of the written obligation hereinbefore set out, and beginning on, to-wit, April 3, 1893, and at divers times thereafter, said defendants paid in all, as interest on said sum of $15,000 secured by the obligation hereinbefore set out, the sum of thirty-two hundred dollars, interest up to and including. November 21, 1894.

That an installment of interest on said obligation amounting to the sum of $1,200 became due and payable on March-21, 1895, and that said defendants paid on account thereof only $800, and as to $400 thereof made default, and neglected and failed to pay the same or any part thereof; and that on March 21, 1896, another installment of interest on said obligation amounting to $1,200 became due and payable, but said defendants made default and neglected and failed to pay the same or any part thereof; that on the ninth day of October, 1896, said defendants not having paid the said two last mentioned installments of interest, the said T. H. Camp (to whom, it is alleged in the complaint, the said Wiggins, on the twenty-fifth day of March, 1892, transferred his interest in said contract and stock,, but which allegation is denied in the answer) by his agent and attorney, tendered said stock, indorsed in blank for the benefit of the defendants, to the TTtah National Bank in Salt Lake City, TJtah, and demanded of said bank payment of said $15,000, with the interest due thereon, but said bank refused to pay the same, or any part thereof, and that thereupon the said T. H. Camp by his said agent and attorney, in writing notified each of the defendants of said tender and refusal am' demanded of them payment of said $15,000, and the accrued interest thereon, but that said defendants did not pay the same or any part thereof and have ever since failed to make such payment.

In avoidance of these admitted facts, the defendants in their answer allege that said T. II. Camp instead of tendering said stock while the defendants were in default accepted and retainéd said stock as Ms own: “That on the twenty-first day of March, 1895, the interest on said obligation became and fell due, to-wit: the. sum of $1,200. That the said defendant did not pay the same, but did pay thereupon the sum of $800, and made default in payment of the remaining $400. That no part of said $400, or interest thereon to date, was then or at any time’since has been paid. That thereby by the terms of said bond the principal sum of said bond ($15,000) became and was due, and remained thereafter due for the space of ninety days. That by the terms of said bond the holders thereof were required lo elect within said ninety days whether to retain the stock or rely upon the said liability upon the bond. That at the expiration of the said ninety days the holders of the bond elected to retain the stock and not to rely upon the personal liability of the signers of said bond. That the said holders of said stock did retain the said stock at that time and afterwards until the ninth day of October, and ever since 1896, and never at any time during that period, between the twenty-first day of March, 1895, and the ninth day of October, 1896, indicated in any form to tbe defendants that tbe tben holders of tbe bond intended to rely upon tbe personal security at all, but by tbe retaining of said stock elected to waive any suit upon said bond.”

There is no evidence that tbe said T. H. Camp, in expressed terms, elected to retain tbe stock and release tbe defendants from liability, but tbe claim that be did so is based solely On tbe terms of tbe contract and tbe admitted facts that be retained said stock for more than ninety days from tbe first default of tbe defendants, which occurred on March 21, 1895, and did not tender tbe same to tbe Utah National Bank, or indicate any intention of bolding defendants liable, on account of default, for tbe principal sum mentioned in said contract, until October 9, 1896.

Tbe court below held that tbe contract did not warrant defendants’ contention that such retention of tbe stock and tbe failure to tender tbe same to tbe Utah National Bank in ninety days from tbe default of tbe defendants, was, under tbe provisions of tbe contract, an election by tbe said T. H. Camp to retain tbe stock and release tbe defendants from liability. .

Tbe following statements in tbe appellants’ brief indicate tbe important points presented by the assignments of error and principally relied upon by defendants:

“Tbe principal points relied upon by tbe appellants are that tbe court erred in bolding that tbe grantee could make a tender of tbe stock at any time to tbe bank, and in not bolding that tbe grantee bad elected to treat tbe stock as bis by not tendering it within ninety days after default.

“In admitting in evidence tbe letters of tbe co-signers to the bond, and tbe letters of’ Mason.

“In ruling that defendants could not show by way of defense, that some of tbe signers bad become insolvent and permitting tbe plaintiff to sue without administration of the estate of T. H. Camp being bad in tbe State of Utah.”

As tbe facts relating to tbe first point, mentioned in said brief, are not disputed, tbe decision of tbe point depends solely upon tbe true interpretation of tbe contract. Its terms are plain and unambiguous.

Defendants5 counsel claim tbat by tbe terms of tbe contract tbe obligees were required, witbin ninety days from tbe date of tbe first failure to pay tbe interest, to make tbe election mentioned in tbe answer. No sucb terms are expressed in said contract, or implied from its expressed terms.

Tbe term, “ninety days from tbe expiration of said five years,55 expressed in tbe contract, evidently, was not intended to bave, and under no tenable interpretation could be given any other effect than to fix tbe period of time witbin wbicb, after tbe expiration of five years, tbe obligees should exercise tbe right and option specified in tbe contract, of either retaining tbe stock or tendering it to tbe Utah National Bank.

Tbe terms “ninety days” do not occur in tbe contract except in connection with tbe expression “from tbe expiration of said five years.” Tbe contract provides tbat if tbe interest is not paid promptly both tbe principal and interest shall then become due, and immediately following this provision tbe following language occurs: “And upon tender of tbe stock to tbe Utah National Bank, in tbe manner and for tbe purpose aforesaid, payment in full may be demanded and collected.”

Counsel for tbe appellants claim tbat this clause of tbe contract requires tbe obligees to tender tbe stock to tbe Utah National Bank witbin ninety clays after default.

The language, used is not susceptible of sucb a construction. While tbe purposes of both of tbe tenders mentioned in tbe contract are evidently tbe same, and each was required to be made in tbe same manner, yet as tbe right to make tbe first tender mentioned depends solely upon tbe lapse of time and can not be made until after tbe expiration of five years, and the right to make the second tender depended upon entirely different events, and accrued immediately upon default in the payment of the interest, the terms “in the manner and for the purpose aforesaid” have no relation whatever to the period of ninety days named in the contract, and did not limit the time within which the stock might be tendered to the Utah National Bank, to ninety days after default.

The plaintiff claims to be the legal, owner and holder of said contract and stock, by virtue of certain assignments théreof.

It is alleged in the complaint that on the twenty-third day of March, the said George W. Wiggins, for the consideration of $7,500, to him in hand paid by the said T. PL Camp, assigned to said Camp all his right, title and interest in and to said contract and stock; that the said T. H. Camp died in the county of Jefferson, State of New York, on the seventh day of February, 1897, leaving a last will and testament and an estate in said county, and that at the time of his death he was a resident thereof; that on the tenth day of February, 1897, Wglter PI. Camp, George Y. S. Gamp and Frederick S. Camp were appointed executors of the last will and testament of the decedent, T. IP. Camp, by the surrogate of said Jefferson county, and thereupon said appointees qualified as such executors; that on the twenty-first day of June, 1897, said executors for a valuable consideration paid by plaintiff, did, by writing, assign, transfer and set over to said plaintiff said contract and all their right, and the rights of the said decedent and of his estate thereunder, .together with all sums of money due or to become due thereon; that by the laws of the State of New York said contract, and all the rights of said decedent thereunder passed to said executors to be used and disposed of by them according to their own discretion, without the order of any court in the premises.

The foregoing allegations are denied by the answer, but the trial court, in its findings, found the facts as alleged in the complaint.

The findings are justified by the evidence, and in connection with the facts admitted by the pleadings, support the judg-1 ment rendered in favor of plaintiff for the sum mentioned 'in said contract, with interest thereon, and should therefore be affirmed, unless some reversible error was committed in the course of the trial.

The second principal point relied upon by appellants is* that the court erred in admitting in evidence, over appellants objection, the letters of the co-signers of the contract. These letters had no bearing on any of the issues formed by the pleadings, but were admissions by the co-signers, who wrote the letters, of the liability of the defendants, to the obligees, of the contract, and the objection urged to the admission of these .letters in evidence was that the admission of liability by one of the co-signers of said contract could not bind the other signers.

As the liability of the defendants to the obligees of said contract, as before shown, is admitted by the pleadings, the plaintiff was not required to introduce any testimony on that point. So that the introduction of these letters, even though it were admitted that they were, as claimed by the appellants, hearsay and incompetent, as they related to facts admitted by the pleadings, their admission is not reversible error. See 2 Ency. of PL and Pr. (2 Ed.), 553, n. 3, and cases cited.

The third principal point relied upon by appellants is that the court erred in ruling that the defendants could not show, by way of defense, that some of the signers had become insolvent.

The defendants, for a good and sufficient consideration moving to them, as principals, not only guaranteed the annual payments mentioned in said contract, but as principals covenanted and agreed to pay to the said Camp and Wiggins, uporj tbe happening of certain events, the $15,000 mentioned in the contract.

As the defendants are principals in said contract, the insolvency of some of them can not affect the plaintiff’s rights regarding the others, and no delay in the enforcement of the contract, short of the statutory period of limitations, can defeat his claim.

The last principal point, relied upon in the appellants’ brief is that the court erred in permitting the plaintiff to sue without administration of the estate of the said T. H. Camp, deceased, being had in the State of Utah.

As the executors, under the laws of New York, had authority to transfer said contract and stock by assignment, and did so transfer the same, the plaintiff had the right to sue and maintain the suit as such assignee, without regard to any administration of said estate.

It is not necessary to pass upon the remaining assignments of error. No reversible error is shown by the record. It is therefore ordered that the judgment of the lower court be affirmed, and that the appellants pay the costs.

Bartch, G. J., and McCarty, District Judge, concur.