Rock v. Gustaveson Oil Co.

214 P. 301, 61 Utah 399, 1923 Utah LEXIS 16

• Court: Utah Supreme Court
• Decided: March 10, 1923
• Docket: No. 3930
• Status: Published

Opinions

GIDEON, J.

In this action damages are sought by reason of the alleged failure of the defendant company, appellant here, to deliver certain of its capital stock purchased by plaintiff, respondent here, at the time stipulated in the contract of purchase. The case was before this court on a former appeal. Rock v. Gustaveson Oil Co., 59 Utah, 451, 204 Pac. 96. That appeal was on the judgment roll. The judgment was reversed, and on retrial the court made the following findings

“That on or about August 4, 1919, the plaintiff purchased from the defendant 50,000 shares of capital stock of the defendant corporation. That the defendant promised to deliver the certificates of stock to said 50,000 shares to plaintiff within a reasonable length of time. That one day was a reasonable length of time, and delivery should have been made on August 5, 1919. The plaintiff demanded said certificates of stock, hut the defendant failed and refused to deliver the same until the 21st day of August, 1919. That the market value of the said stock on the 5th day of August, 1919, was 3 cents per share. That the market value of said stock on the 21st day of August, 1919, was iy¿ cents per share. That at the time the stock was purchased the plaintiff informed the defendant that the stock was being purchased for resale.”

In tbe former opinion of this court it is said:

"Again, the defendant having been fully advised by the plaintiff at the time of the purchase of the stock that it was being purchased for resale, it must be held that the parties legally contemplated that upon failure to deliver the stock the measure of plaintiff’s damages would be the difference between the market price when plaintiff was entitled to a delivery and the market price when the delivery was actually made.”

The findings of the court are challenged, but an examination of the evidence conclusively establishes the fact that there is some substantial proof in the record to support them. This being a law action, those findings become binding upon this court. It is wholly immaterial whether 1 in the judgment of this court the weight of the testimony would support contrary findings.

On the findings made the court entered judgment for the respondent. To reverse that judgment is the object of this appeal. The measure of damages sustained by a failure to deliver corporate stock at the time it should 2 have been delivered, as stated in our former opinion, becomes and is the law of this ease. That measure is the difference between the market price at such date and the market price at the date of actual delivery.

It is insisted by counsel for appellant that the respondent failed to show, by evidence or otherwise, that the market price of the stock had not increased since the date of delivery ; hence it is argued that the proof fails to show whether any actual damages have been sustained by the respondent. The appellant by its answer did not tender the issue of increased value of the stock after the date of delivery, and no testimony was offered by either party respecting that particular question. Doubtless if appellant had shown that the market value of the stock had increased after the date of delivery, and that the respondent had knowledge of such increase, and, further, if respondent had not disposed of the stock prior to the filing of the suit, such facts should have been considered by the court in determining 3 whether the respondent had sustained any actual damage. No such showing being made, and there being no ■finding of fact either for or against such issue, the contention is without merit so far as this case is concerned.

There are other assignments relating to the admissibility of evidence, but whatever error, if any, may have been made in that regard was not prejudicial, and could not result in a reversal of the judgment.

Respondent has filed what is designated “Additions to Abstract of Record.” The contents of that document were wholly unnecessary to the presentation of the issues raised by appellant.

Finding no reversible error in the record, the judgment. of the district court is affirmed, with costs of this appeal, except the cost of printing the additional abstract.

WEBER, C. J., and THURMAN, FRICK, and CHERRY, JJ., concur.