The following opinion was filed June 1, 1920:
Escpiweiler, J.
It is contended on behalf of defendant that the agreement between plaintiff and Wagner as evidenced by the writings of September 28 and October 12, 1917, set out in the statement of facts, should be construed to embody two separate and independent contracts, one by plaintiff to purchase the auto truck, and the other by Wagner to dispose of plaintiff’s five shares of stock, and that the agreement to purchase by plaintiff was not dependent upon a prior sale or accounting by Wagner of plaintiff’s stock.
We think it plain, however, that the reasonable construction to be given to the contracts between plaintiff and defendant Wagner was that plaintiff was not bound to accept and pay for the truck unless and except- there had 'been a sale by Wagner of the five shares of stock, out of which sale $500 was to be retained as a deposit on account of the purchase of the truck and the balance thereof evidently to be made available to plaintiff to apply on the purchase price of the truck at the time fixed for delivery thereof in the following April. ■
As between plaintiff and defendant Wagner, therefore, the plaintiff could not be held liable on account of any failure on his part to buy and pay for the truck unless and except the defendant Wagner had first sold and accounted for the proceeds at the agreed amount of $575 per share before January 1st, or at least before the time arrived at which plaintiff was to make final payment for the truck, or unless plaintiff himself had otherwise breached the contract.
Unless the trial court was correct under the law and evidence in this case in determining that the plaintiff had breached the contract by attaching to the notice signed by [229] him to be presented to the Four Wheel Drive Auto Company the sight draft for the agreed price of $575 per share for the five shares, and the implied, if not express, direction to the bank that such notice should not be delivered except upon payment of such sight draft, the judgment below must be reversed.
In the writings between plaintiff and Wagner in September and October nothing was said as to the furnishing of the notice specified on the face of the certificates and embodied in the by-laws of the Four Wheel Drive Auto Company. It appears from Wagner’s testimony that such bylaw and the necessity of such notice did not come to his attention until December and sometime after he had pledged the stock, asserting unequivocal. ownership therein by his written agreement with defendant Black set forth in the statement of facts.
It may be conceded that notwithstanding the contract between plaintiff and Wagner was silent as to the giving of such notice it would still be an implied condition of such contract that plaintiff, Kuhn, should take the necessary steps in order to properly pass title of the certificates of stock from himself to defendant Wagner; yet we are nevertheless forced to the conclusion that defendant Wagner is not, under the testimony in this case, entitled to assert that such attaching of the sight draft and thereby demanding payment was such an act as entitled him to treat' the contract as broken by plaintiff and therefore making plaintiff subject to the damages asserted by defendant and allowed by the court.
In the first place, the testimony is .without dispute that no word of protest or objection was raised by Wagner and brought to the attention of plaintiff at any time while the notice, with the attached draft, was in the hands of the bank in Green Bay, from about January 2d until returned. In that interval Wagner’s attention had been called by the bank to the fact that the notice and draft were in its hands awaiting his attention. He delays at first giving any atten[230] tion to the matter, and at no time during that interval suggests any objection to such procedure, and does no more than suggest to the cashier that there was some dispute about the amount that should be paid or that he wished to see plaintiff about it.
It is also quite clear from Wagner’s own testimony that he did.-not then or at any time have any binding contract of sale for this stock to any third person then'able, ready, and willing to pay the price he mentioned of $520 per share,' or that he was able, ready, and willing to make up the difference between- the $520 and the $575 per share, for which amount it was to be accounted for to plaintiff.
Up to the time of the return of the draft and notice and afterwards Wagner makes no protest to the plaintiff dr notifies him in any manner that such action on plaintiff’s part was being considered as a violation of the implied terms of the contract. ' •
Having raised objections to the draft other than that it was an unauthorized act under the contract, and then having directed the cashier of the bank to return such draft and notice, as he did, still remaining silent as to any such claim as 'he now asserts of an absolute breach, and without any offer of return' of the certificates of stock belonging to plaintiff, but which Wagner had already placed by his pledge to Black beyond his present power to return, he ought not to be heard to assert any such disastrous result as he now urges should follow from plaintiff’s act in attaching the draft to the signed notice.
By his transaction with defendant Black, Wagner asserted in writing án absolute ownership of the stock, which, as between himself and Black, would necessarily estop him from asserting any benefit to himself by'reason of such bylaw as against Black. Having asserted absolute ownership ■ of this stock in his transaction with Black and thereby having placed it beyond his power to return the stock to plaintiff except and unless the conditions of the contract with [231] Black were complied with, he ought not to be heard to assert that plaintiff’s action with reference to the notice to the company was of substance sufficient to create an absolute breach of the contract between himself and plaintiff, when he either disregards it entirely or treats the same condition as to ■notice as of no weight or importance in his transaction with Black.
We‘ are therefore of the opinion that there was no such substantial breach by plaintiff of the contract on his part as justifies the finding and judgment in favor of defendant Wagner in the court below.
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The following opinion was filed June 1, 1920:
Escpiweiler, J.
It is contended on behalf of defendant that the agreement between plaintiff and Wagner as evidenced by the writings of September 28 and October 12, 1917, set out in the statement of facts, should be construed to embody two separate and independent contracts, one by plaintiff to purchase the auto truck, and the other by Wagner to dispose of plaintiff’s five shares of stock, and that the agreement to purchase by plaintiff was not dependent upon a prior sale or accounting by Wagner of plaintiff’s stock.
We think it plain, however, that the reasonable construction to be given to the contracts between plaintiff and defendant Wagner was that plaintiff was not bound to accept and pay for the truck unless and except- there had 'been a sale by Wagner of the five shares of stock, out of which sale $500 was to be retained as a deposit on account of the purchase of the truck and the balance thereof evidently to be made available to plaintiff to apply on the purchase price of the truck at the time fixed for delivery thereof in the following April. ■
As between plaintiff and defendant Wagner, therefore, the plaintiff could not be held liable on account of any failure on his part to buy and pay for the truck unless and except the defendant Wagner had first sold and accounted for the proceeds at the agreed amount of $575 per share before January 1st, or at least before the time arrived at which plaintiff was to make final payment for the truck, or unless plaintiff himself had otherwise breached the contract.
Unless the trial court was correct under the law and evidence in this case in determining that the plaintiff had breached the contract by attaching to the notice signed by [229] him to be presented to the Four Wheel Drive Auto Company the sight draft for the agreed price of $575 per share for the five shares, and the implied, if not express, direction to the bank that such notice should not be delivered except upon payment of such sight draft, the judgment below must be reversed.
In the writings between plaintiff and Wagner in September and October nothing was said as to the furnishing of the notice specified on the face of the certificates and embodied in the by-laws of the Four Wheel Drive Auto Company. It appears from Wagner’s testimony that such bylaw and the necessity of such notice did not come to his attention until December and sometime after he had pledged the stock, asserting unequivocal. ownership therein by his written agreement with defendant Black set forth in the statement of facts.
It may be conceded that notwithstanding the contract between plaintiff and Wagner was silent as to the giving of such notice it would still be an implied condition of such contract that plaintiff, Kuhn, should take the necessary steps in order to properly pass title of the certificates of stock from himself to defendant Wagner; yet we are nevertheless forced to the conclusion that defendant Wagner is not, under the testimony in this case, entitled to assert that such attaching of the sight draft and thereby demanding payment was such an act as entitled him to treat' the contract as broken by plaintiff and therefore making plaintiff subject to the damages asserted by defendant and allowed by the court.
In the first place, the testimony is .without dispute that no word of protest or objection was raised by Wagner and brought to the attention of plaintiff at any time while the notice, with the attached draft, was in the hands of the bank in Green Bay, from about January 2d until returned. In that interval Wagner’s attention had been called by the bank to the fact that the notice and draft were in its hands awaiting his attention. He delays at first giving any atten[230] tion to the matter, and at no time during that interval suggests any objection to such procedure, and does no more than suggest to the cashier that there was some dispute about the amount that should be paid or that he wished to see plaintiff about it.
It is also quite clear from Wagner’s own testimony that he did.-not then or at any time have any binding contract of sale for this stock to any third person then'able, ready, and willing to pay the price he mentioned of $520 per share,' or that he was able, ready, and willing to make up the difference between- the $520 and the $575 per share, for which amount it was to be accounted for to plaintiff.
Up to the time of the return of the draft and notice and afterwards Wagner makes no protest to the plaintiff dr notifies him in any manner that such action on plaintiff’s part was being considered as a violation of the implied terms of the contract. ' •
Having raised objections to the draft other than that it was an unauthorized act under the contract, and then having directed the cashier of the bank to return such draft and notice, as he did, still remaining silent as to any such claim as 'he now asserts of an absolute breach, and without any offer of return' of the certificates of stock belonging to plaintiff, but which Wagner had already placed by his pledge to Black beyond his present power to return, he ought not to be heard to assert any such disastrous result as he now urges should follow from plaintiff’s act in attaching the draft to the signed notice.
By his transaction with defendant Black, Wagner asserted in writing án absolute ownership of the stock, which, as between himself and Black, would necessarily estop him from asserting any benefit to himself by'reason of such bylaw as against Black. Having asserted absolute ownership ■ of this stock in his transaction with Black and thereby having placed it beyond his power to return the stock to plaintiff except and unless the conditions of the contract with [231] Black were complied with, he ought not to be heard to assert that plaintiff’s action with reference to the notice to the company was of substance sufficient to create an absolute breach of the contract between himself and plaintiff, when he either disregards it entirely or treats the same condition as to ■notice as of no weight or importance in his transaction with Black.
We‘ are therefore of the opinion that there was no such substantial breach by plaintiff of the contract on his part as justifies the finding and judgment in favor of defendant Wagner in the court below.
The parties 'stipulated on the trial and subsequently in writing that the value of the Four Wheel Drive Auto Company stock was only $190 per share at the time of the trial, and the court so found. No finding was made as to the market value of the stock at the time of the transactions between plaintiff and defendant in the fall of 1917. From defendant Wagner’s own testimony, however, it appears that he was negotiating for the sale of this stock in December at $520 per share. This makes the market value of the five shares as they then stood $2,600. At the time of the trial the five shares had become increased by the" stock dividend of fifty per cent, thereof to seven and one-half shares. The value of these at the stipulated and found value of $190 per share amounts to $1,425, making a difference or depreciation in the value of the stock of $1,175. This we think to be the proper measure of damagés accruing to plaintiff by reason of the stock and for which amount the plaintiff is entitled to judgment as against the defendant Wagner.
Although no finding was made in this regard by the court below because of the disposition there made of the issues, yet it appears from all the facts and circumstances reasonably certain that plaintiff could and would have made a. sale at the market price of the stock during the time it was in Wagner’s possession, and so far as defendant Wagner is concerned he could not properly be held to' assert as a de[232] fense to the damages thus awarded against him on account of such depreciation that plaintiff did not go through what would have been an idle ceremony of attemptirig to sell the stock to someone else, it being in Wagner’s possession or control.
The court found that the defendant Black was chargeable with notice of the rights of the plaintiff as to this stock from what appeared on the face thereof and from the contract between himself and Wagner. Defendant Black urges in this court, upon notice to that effect, that such finding should be set aside. We see no reason, however, why such should be done, and defendant Black can assert no title to this stock as against the plaintiff. •
It follows therefrom that the judgment should be reversed and plaintiff awarded a judgment for the amount of the damages as here found against defendant Wagner, with his costs in this court and the court below; that the five shares of stock held by defendant Black and the two and one-half shares of dividend stock‘held by the Four Wheel Drive Auto Company, defendant, together with the cash dividend declared in the interim by it and also so helcj, should be returned to plaintiff.
By the Court. — Judgment reversed, and the action remanded with directions to enter judgment in accordance with this opinion.
A motion for a rehearing was denied, with $25 costs, on September 25, 1920.