Fox v. Haarstick

This was an action brought in the district court of the Third judicial district of Utah by Henry C. Haarstick against Moylan C. Fox, executor of Sarah M. McKibben, deceased, to recover damages for the refusal of the defendant to assign and transfer to the plaintiff 1,414 shares of the capital stock of a corporation known as the St. Louis & Mississippi Valley Transportation Company, as called for by a contract subsisting between the plaintiff and Mrs. McKibben during the lifetime of the latter.

At the trial a jury was waived, and the case was tried by the court. The trial judge made certain findings of facts and conclusions of law as follows:

'(1) That the defendant, Moylan C. Fox, is the executor, duly qualified and acting, of the last will and testament of Sarah M. McKibben, deceased.

'(2) That by written correspondence between Sarah McKibben and the plaintiff, dated February 25, 1890, and March 1, 1890, the said Sarah McKibben contracted to sell and deliver to the plaintiff, within forty days after said date, 1,414 shares of the capital stock of the St. Louis & Mississippi Valley Transportation Company, a corporation organized under the laws of the state of Missouri, for the sum of ninety-two thousand five hundred dollars.

'(3) That before the time of the completion of said contract arrived, to wit, on the 5th day of March, 1890, the said Sarah M. McKibben died, and the said executor then refused, and ever since has refused and declined, to deliver said stock, and to carry out and fulfill the contract.

'(4) That the plaintiff has been ready and willing to pay the said sum of ninety-two thousand five hundred dollars for the said stock upon the delivery thereof, but the said executor still refuses and declines to accept the same.

'(5) That the said stock, at the time when the same should have been delivered, to wit, on or about the 10th day of April, 1890, was of the value of one hundred and four thousand five hundred dollars, and that the plaintiff was damaged, by reason of the defendant's failure to deliver the said stock and fulfill the said _____. in the sum of twelve thousand dollars, with interest thereon at the rate of eight per cent. per annum, from the 10th day of April, 1890, amounting at this date to one thousand four hundred and eight-five dollars, and making the plaintiff's damage in all thirteen thousand four hundred and eighty-five dollars.

'(6) That on the 30th day of October, 1890, the plaintiff presented a claim in writing, pursuant to the statute in such case made and provided, demanding the payment of the sum of thirty-six thousand one hundred and seventy-four dollars damages to Moylan C. Fox, executor of said Sarah M. McKibben, deceased, and that on said day the said executor rejected said claim.

'As conclusions of law from the foregoing facts, the court now hereby finds and decides:

'That the plaintiff is entitled to have and recover of and from the defendant the sum of thirteen thousand four hundred and eighty-five dollars, with interest thereon from this date until paid, at the rate of eight per cent. per annum, and costs of suit; and judgment is hereby ordered to be entered accordingly.'

A motion for a new trial was made and overruled, judgment was entered, and an appeal was taken to the supreme court of the territory of Utah (33 Pac. 251), from whose judgment, affirming that of the court below, an appeal was taken to this court.

Chas. W. Bennett and John A. Marshall, for appellant.

F. S. Richards, Arthur Brown, and Given Campbell, for appellee.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.