Thompson v. Whitney

Bartch, C. J.

This is an action upon a contract. It was tried by the court, a jury having been waived, and the plaintiff recovered judgment against .the defendant for the sum of $1,110, the principal sum being $800, and interest $310. This appeal is from the judgment.

The first assignment of error, which we will consider, is the one respecting the amendment to the complaint, permitted by the court over the objection of the defendant. The original complaint, so far as material here, reads as *5 follows: “That on or about August 28, 1892, defendant sold to this plaintiff twenty shares of capital stock in the Salt Lake Implement Company, a corporation, of the par value of one hundred dollars ($100) each, and at the same time agreed with said defendant to pay him the first year as a dividend on said stock, forty per cent, of its face value, in cash, or eight hundred dollars ($800.)

That for and in consideration of the agreement by said defendant made to pay the plaintiff, as a dividend on said stock eight hundred dollars, the plaintiff turned over to the defendant as payment for said shares of capital stock in said Salt Lake Implement Company, goods, wares, and merchandise, invoicing two thousand six hundred and sixty-six dollars ($2,666.)

That the defendant has neglected and refused to pay plaintiff the said sum of eight hundred dollars or any part thereof, although demand has been made on him by plaintiff therefor.

At the trial, the proof developed the fact that the capital stock of the Salt Lake Implement Company was divided into shares of the par value of $10, each, instead of $100, as alleged in the first paragraph, above quoted, and an amendment, in this instance, was made to conform to the proof without objection. It was further shown by the proof that the goods, wares and merchandise were turned over to the Implement Company, instead of to the defendant, as was alleged in the second paragraph quoted. The court,- against the objection of the defendant, permitted the complaint to be again amended so as to conform to the proof, and this action, it is contended was erroneous and prejudicial to the rights of the appellant.

We do not think this contention is well founded. The proof had established the facts that the appellant was the heaviest stockholder in the implement company and was *6 its vice-president and manager, and that the goods, wares and merchandise had actually been turned over and transferred to the implement company. This did not render the corporation liable on the appellant’s personal guaranty, nor did it relieve him from any personal obligation to the respondent. The appellant, as shown by the evidence, was acting as agent for the corporation, and the goods were turned over, pursuant to agreement, and received by the party whom he intended should have them, and he shared in the benefits, if any, of the transaction, as the principal stockholder. The fact that the allegation in the complaint stated that the goods were turned over to the appellant, who was the agent in the transaction, while the proof showed that they were turned over direct to the principal, is not such a variance as cannot be cured by amendment. A court has power to permit such an amendment in furtherance of justice, and on such terms as may be proper. R. S., Secs. 3001-3005.

Upon allowing the amendment, the record shows, the court offered, if the appellant would make a showing of surprise, to grant him all the time he would need to meet the proposition put forth by the amendment. This was all he could ask, and not having requested time, and no change having been made in the issues respecting his promise and personal liability, he cannot now be heard to complain because of the amendment.

The appellant also contends that the court erred in refusing to-grant his motion for a non-suit, made at the close of the plaintiff’s testimony, on the grounds that there was a variance between the allegations of the complainant and the evidence; that the agreement, or guaranty, to pay the dividend within a year, not being in writing, was within the statute of frauds; and that there was no evidence of any demand.

*7 The variance alleged, as the first ground for a non-suit, was rendered untenable by the amendment, and therefore was not fatal to a recovery, and did not warrant the court in granting the motion. The second ground on which the motion was based is equally untenable, because the oral promise of the appellant to pay the dividend, was to be performed within a year, which is the time limited by the statute then in force in such a case. Sec. 2835, C. L. U. 1888.

There is evidence tending to show, and the court found, that the promise or agreement was made as a part of the consideration for the respondent to turn over the goods, wares, and merchandise, and that the dividend of 40 per centum on the 200 shares of stock, which constituted the major portion of such consideration, was to be paid within the first year. This being so, and the respondent having performed his part of the contract, the mere fact that the appellant, in apparent violation of his promise, failed to pay over the dividend within the stipulated time, gives him no right to claim exemption under the statute of frauds. Nor do we think the third ground of his motion, that there was no evidence of any demand, is well founded.

The purpose of the rule which requires a demand, before bringing suit in certain cases, is to enable the party upon whom it is made to discharge his obligation, or perform his contract, without incurring the expense of a law suit.

Where then, as in the case at bar, the nature of the plaintiff’s claim is such that a demand and refusal become a condition precedent to a recovery, and the defendant in his answer denies all liability under the alleged contract, or obligation, and repudiates the same, so that it is apparent that a previous demand would have been met with a ' refusal, proof of such demand is not necessary — not even though alleged in the complaint. In such case a demand *8 would be wholly useless, and the law never requires the performance of a useless thing.

Therefore, the appellant, having in his answer disclaimed all liability and entirely repudiated the respondent’s claim, cannot be heard to object that no demand was proven. 9 Am. & Eng. Enc. of Law (2d ed.) p. 209; 4 Ency Pl. & Pr. p. 647-648 and notes; Parrott v. Byers, 40 Cal. 614 ; Cox v. Delmas, 99 Cal. 104 .

From these considerations we are of the opinion that the court properly denied the motion for a non-suit.

It is also contended, in behalf of the appellant, that the court erred in its findings of fact, because, as is insisted, the same are not justified by the proof.

In reply to this contention, we deem it sufficient to say that the record contains evidence which supports each material finding of fact, and in such event, this being a case at law, we have no power to determine whether or not such evidence preponderates. Whittaker v. Ferguson, 16 Utah, 240 .

We find no reversible error in the record. The judg-is affirmed with costs.

Minek, J. and Baskin, J., concur.