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that no bailment could be implied from the mere leaving by a contractor of machinery on the right of way of a carrier. In that case the railroad, having been sued for the value of the machinery, which it was alleged it had misappropriated, sought to prove an implied or an involuntary bailment. It was said by the court: "He voluntarily left his property on defendant's right of way, but not in its custody nor by virtue of any contract of bailment with it, express or implied, nor with any intention of rendering it liable as bailee or otherwise for its safety." In that case it was held that the railroad was liable for the machinery appropriated by it, and that the owner might waive the tort, and sue the wrongdoer in assumpsit for the value of the property taken.

In Chicago G. W. R. Co. v. Davis (1924) 1 F. (2d) 729, certain steel fence posts, having reached their destination, were accepted by the consignee and the freight charges paid. As the consignee delayed in removing them, they were unloaded by the carrier on its right of way, where they remained for some time. The carrier then presented a bill for storage which the consignee refused to pay, whereupon the carrier sold the posts, applied the money to its bill, and brought an action against the consignee for the remainder. The uniform bill of lading under which the posts had been shipped provided that if the property was not removed in forty-eight hours after notice of its arrival had been given, it might be kept in the car, depot, or place of delivery, subject to a reasonable charge for storage, and to the carrier's liability as a warehouseman. In regard to this the court said: "The posts were not kept in a car, depot, or warehouse. Therefore, unless they were kept in the 'place of delivery' of the carrier, so as to be 'subject to a reasonable charge for storage,' then no storage charge could be made. Now it seems to me that this contract clearly contemplates mutual obligations; that it contemplates the storage of the freight in question by the railroad company, as well as the payment of the storage

charges by the shipper or consignee. Warehouse service or storage is valuable, because calculated to preserve and protect the article stored against hazard. I think 'place of delivery' in a uniform bill means either the unloading platform or some other place. customarily used for the delivery of freight, and calculated, either by reason of its character, location, supervision, or care, to afford protection against the usual hazards to unstored or unguarded property." It was held, therefore, that, having supplied nothing, the carrier could charge nothing. In other words, there was no contractual relationship between the parties.

In Lancashire & Y. R. Co. v. Gidlow (1875) L. R. 7 H. L. (Eng.) 517, the private act in respect to the railroad permitted it to make certain charges for the conveyance of goods, and also to charge for services incidental to such conveyance. The carrier brought an action for charges, including therein charges for storage on coal which the defendant had left on its right of way. The defendant pleaded overcharge as to that, claiming it was not a service incidental to the conveyance of goods within the act. In deciding that matter the court said: "In truth, the only suggestion made in the argument before your lordships was, that at one or more of the stations to which the coal was carried there had been a privilege given to the colliery owner of using a larger or smaller portion of the ground of the railway company for the purpose of leaving his coal upon the ground; and in the case of one particular station, an agreement or a license was shown by which the colliery owner was permitted to leave his coals at and around a particular siding, and the company was not to be at liberty to take away that license from him except upon one month's notice. My lords, that may or may not be a matter for which the company might have made an agreement and required payment, but it undoubtedly is not a 'service' performed by the company for the colliery owner. If a man lets to me an acre of land for the purpose of my placing my goods.

or minerals upon it, or if he gives me a license to place my goods or minerals upon a limited portion of his land or siding, that may be a matter for which he and I may enter into an agreement, and for which payment may be made; but it is not, within the parliamentary power, to be termed a 'service performed' by him for me." The court

held that, the transportation having
ceased and the goods having been de-
livered, the relationship between the
carrier and the consignee ended, and
the carrier could exact no more

charges for such transportation, or for
services incidental to the transporta-
tion.
W. Q. F.

T. N. PUGH et al., Appts.,

V.

J. B. GRESSETT, JR.

Mississippi Supreme Court (In Banc) — October 13, 1924.

(136 Miss. 661, 101 So. 691.)

Contracts, § 180 sale of stock-part performance.

1. When corporate stock is bought and sold with a position and salary as manager as a part of the consideration, the giving up of the position by one party and the assuming management and control of the business by the other under the agreement is part performance, which takes the case out of the Statute of Frauds.

[See note on this question beginning on page 693.] Contracts, § 86 sale of corporate

stock absence of details.

2. Where corporate stock is sold for a fixed price, and a part is to be paid in cash, and part to be carried in negotiable notes by the seller, to be closed by a named date, there is a contract, even though the maturities and specific terms of notes are not set out. In such case the customary dealings may be looked to, and in Headnotes by ETHRIDGE, J.

such case the seller agrees to take negotiable notes, and the buyer agrees to make and deliver them to the seller in such form and terms as will make them negotiable. The buyer cannot take possession of the business which he gets charge of by the agreement, and refuse to carry out his part of the contract.

[See 6 R. C. L. 643 et seq.; 2 R. C. L. Supp. 171; 4 R. C. L. Supp. 431; 5 R. C. L. Supp. 360.]

(Smith, Ch. J., and Sykes and Cook, JJ., dissent.)

APPEAL by defendants from a judgment of the Chancery Court for Lauderdale County (Tann, Ch.) in favor of plaintiff in an action brought to compel specific performance of an alleged contract for the purchase and sale of corporate stock. Affirmed.

The facts are stated in the opinion of the court. Messrs. Wells, Stevens, & Jones, for appellants:

There was in fact no agreement by defendant Howard to purchase the stock.

Yazoo & M. Valley R. Co. v. Jones, 114 Miss. 787, 75 So. 550; Pioneer Box Co. v. Price Veneer & Lumber Co. 132 Miss. 189, 29 A.L.R. 1349, 96 So. 103.

The alleged contract is unenforcea

ble because within the Statute of Frauds.

Mayhaw Canning & Preserving Co. v. Cohen, 135 Miss. 378, 99 So. 896; 27 C. J. 238 and note 68; Sprague v. Hosie, 155 Mich. 30, 19 L.R.A. (N.S.) 874, 130 Am. St. Rep. 558, 118 N. W. 497; Spencer v. McGuffin, 190 Ind. 308, 14 A.L.R. 385, 130 N. E. 407; Franklin v. Matoa Gold Min. Co. 16 L.R.A. (N.S.) 381, 86 C. C. A. 145, 158

(136 Miss. 661, 101 So. 691.)

Fed. 941, 14 Ann. Cas. 302; Coleman v. St. Paul & T. Lumber Co. 110 Wash. 259, 188 Pac. 532; Willis v. Ellis, 98 Miss. 197, 53 So. 498, Ann. Cas. 1913A, 1039; Ballingall v. Bradley, 16 Ill. 373.

The alleged contract is unenforceable because lacking in mutuality.

Pom. Eq. Jur. § 1405; Williston, Contr. 855; Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co. 57 L.R.A. 696, 52 C. C. A. 25, 114 Fed. 77; Pantages v. Grauman, 112 C. C. A. 61, 191 Fed. 317; Ryan v. McLane, 91 Md. 175, 50 L.R.A. 514, 80 Am. St. Rep. 438, 46 Atl. 340; Deitz v. Stephenson, 51 Or. 596, 95 Pac. 803; Strasburg R. Co. v. Echternacht, 21 Pa. 220, 60 Am. Dec. 49; Chilhowie Iron Co. v. Gardiner, 79 Va. 305; Hissam v. Parrish, 41 W. Va. 686, 56 Am. St. Rep. 892, 24 S. E. 600; C. Jutte & Co. v. Pfeil, 219 Pa. 520, 69 Atl. 59; McIlroy v. Richards, 148 Mich. 694, 112 N. W. 489.

Plaintiff was not entitled to any relief, because he did not come into a court of equity with clean hands, and the contract sought to be enforced is not only void for indefiniteness, but is unconscionable.

Haffner v. Dobrinski, 215 U. S. 446, 54 L. ed. 277, 30 Sup. Ct. Rep. 172; T. B. Harms & Francis, Day & Hunter v. Stern, 145 C. C. A. 531, 231 Fed. 645; Elliott v. Elliott, 3 Alaska, 364; Schneider v. Schneider, 125 Iowa, 16, 98 N. W. 164; Palo Alto County v. Harrison, 68 Iowa, 90, 26 N. W. 19; Jones v. Williams, 139 Mo. 90, 37 L.R.A. 706, 61 Am. St. Rep. 436, 39 S. W. 486, 40 S. W. 353; State v. Baum, 6 Ohio, 386; Newton v. Wooley, 105 Fed. 545; Strang v. Richmond, P. & C. R. R. Co. 93 Fed. 74; Rudisill v. Whitener, 146 N. C. 403, 15 L.R.A. (N.S.) 81, 59 S. E. 995.

Messrs. Jacobson & Brooks and George Butler also for appellants. Messrs. Cassedy & Potter and T. L. Bailey for appellee.

Ethridge, J., delivered the opinion of the court:

The appellee was complainant in the court below and filed his bill against the appellants, alleging that prior to the 1st day of October, 1922, the complainant was the owner of twenty shares of the capital stock of the Meridian Chero-Cola Bottling Company, a corporation under the

laws of the state of Mississippi, domiciled and doing business at Meridian, Mississippi; that on or about the day of September 1922, the said T. N. Pugh and A. T. Howard agreed to purchase from the complainant the said twenty shares of the capital stock of said company and pay him therefor the sum of $10,000, $4,000 of which purchase price was to be paid upon delivery of the stock, and the remainder of the purchase price to be settled for in the note or notes of the defendants, to be executed in favor of the complainant in negotiable form, and of such dates of maturity as that said notes would pass in the usual channels of banks and banking as negotiable paper. Complainant further alleged that, at the time he entered into said agreement with the defendants, he was a director and officer of said corporation, having the general management and control of its business as its place of domicil, and it was agreed and understood that he was to sever his connection with said corporation, and was to be succeeded in the active management thereof by the defendant A. T. Howard; it being agreed and understood by and between the parties that the said contract and agreement would be executed and completed between the parties on or by October 15, 1922. Complainant further averred that, after said agreement had been entered into verbally, on the 30th day of September, 1922, complainant received a letter from the defendant T. N. Pugh, as follows:

"September 30, 1922. "Mr. J. B. Gressett, "Meridian, Mississippi. "Dear Joe:

"Howard and myself made the trade O. K., and he will be over there Wednesday morning to take charge, and if he wants you to stay with him a few days I will appreciate it if you will. I will be over the latter part of the week, or anyhow by the time Mr. Simpson gets back from

his trip, to straighten everything confirming said conversation; said up.

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Complainant further alleged that the above letter and telegram were written in connection with the agreement between the complainant and the defendants, whereby the defendants were to purchase complainant's said shares of stock in said corporation for the sum of $10,000, to be paid for as stated, and that complainant was to surrender the control of said business of said corporation to said Howard.

Complainant further alleged that on October 4, 1922, the said Howard, defendant, then being in Meridian for the purpose of taking active charge of the business and management of said plant, and at a time when said defendants had not paid to complainant the purchase price for said stock, complainant had a conversation with said T. N. Pugh by long-distance telephone, said Pugh then being in Columbus, Georgia, and complainant being in Meridian, Mississippi; the substance and purport of said telephone conversation being that complainant would not surrender the management and control of said corporation unto said Howard without the trade for his stock being fully consummated, and that said Pugh then, during the course of said conversation by telephone, assured complainant that he would be in Meridian in the next few days, and would complete the trade for the said stock, and in order that there might be no misunderstanding or doubt about the matter he would send to complainant on said date a telegram

telegram reading as follows:

"Columbus, Georgia, October 4,

1922.

"J. B. Gressett, Meridian, Mississippi.

"Howard comes to Meridian today to take charge of the affairs of the company in line with agreement. Also we are to buy your stock for ten thousand dollars. Terms to be agreed on by October fifteenth. "T. N. Pugh.”

In response thereto, complainant sent said Pugh the following telegram:

"Meridian, Miss., Oct. 4, 1922. "T. N. Pugh, Montgomery, Alabama.

"Telegram received. I confirm sale twenty shares Meridian CheroCola Bottling Company stock to you for ten thousand dollars. Terms and payment to be arranged negotiable by October fifteenth.

"J. B. Gressett, Jr."

Complainant further alleges that A. T. Howard was then present at Meridian at said Chero-Cola plant, and was fully advised of all that was transpiring between the complainant and the defendant Pugh, and fully agreed on his part to all the terms and conditions of said trade, and assured complainant that the purchase price agreed upon between the parties for the said twenty shares of capital stock would be paid as soon as A. D. Simpson, the vice president of the First National Bank of Meridian, returned home; he then being absent, and it being thought he would return to Meridian prior to October 15, 1922; that, complainant being thus assured that the defendants were acting in good faith with him, he, in good faith, surrendered to the defendants, A. T. Howard and T. N. Pugh, full control and management of said Meridian Chero-Cola plant, and surrendered his position and office as general manager and superintendent, and that in a few hours thereafter the defendants began to be conten

(136 Miss. 661, 101 So. 691.)

tious about the trade, and insisted that complainant should accept less than $10,000. Complainant then avers he was induced to surrender the control and management of said corporation by said conduct of the defendants and their agreement to pay to complainant the sum of $10,000 in the manner hereinbefore set out.

that on final hearing the court will render a decree in favor of complainant and against defendants for the sum of $10,000 and all costs, and prays for general relief.

The defendants answered the bill and admit that prior to the 1st day of October, 1922, the complainant was the owner of said twenty shares of capital stock as alleged in the bill, admit also that complainant was a director and officer of said company, and had entire control and management of said business at its said place of domicil, and aver that complainant kept all the books of said corporation, and was fully familiar with and well knew the financial condition and status of said corporation, and knew the indebtedness due by said corporation, and was fully informed as to all of the financial circumstances, condition, and status of said corporation on and prior to and during the months of September and October, 1922, and well knew such condition for a long time prior thereto. Defendants further charge that complainant was the only officer and stockholder of said corporation, having entire charge of said corporation, attending to its affairs in the city of Meridian, and aver that neither of the defendants knew of the condition of said cor

Complainant further avers that defendants took into their possession and began the active control and management of the affairs of said corporation as an integral part of their agreement to pay to him the sum of $10,000 for said capital stock. He further avers that they failed and refused to pay to complainant the said sum of $4,000 in cash, and refused and neglected to execute their notes for the balance of the purchase price of said capital stock, or do anything towards carrying out said agreement, save the taking over from him of the active control and management of the business affairs of the corporation. corporation. Complainant further avers that, notwithstanding the agreements and obligations of said defendants, and notwithstanding the 15th day of October, 1922, had passed, said defendants and neither of them had paid to complainant the sum of $4,000 in cash, or any part thereof, or ten-poration as to its financial status, dered to him their negotiable notes for the sum of $6,000, or for any other sum. Complainant further avers that he tendered performance of said contract in full on his part, and has actually performed part of said contract by surrendering to said defendants the entire management and control of the affairs of said corporation; and has been and is now ready, willing, and able to deliver to defendants a complete and perfect transfer of said twenty shares of the capital stock in said Meridian Chero-Cola Bottling Company, and hereby tenders full performance of each and every part of said agreement which he is required by the terms of said agreement to perform, and prays that defendants be summoned to answer the bill, and

and what it owed, and what was due and owing said corporation at the beginning of the negotiations for the sale of complainant's said twenty shares of stock in said corporation. Defendants deny that they or either of them purchased of the complainant his said twenty shares of stock in said corporation. as averred in the bill of complaint.

Defendant Pugh represents unto the court that the facts and matters concerning said negotiations averred by the complainant, Gressett, were not as stated in the bill of complaint, but charges that on the day of September, 1922, the said complainant approached the defendant Pugh and told him that he was anxious to sell his twenty shares of capital stock in said cor

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