reasonable one or otherwise, at the time of repudiation, was a fact to be determined by the jury under all the circumstances of the case."

We will next notice the contention of appellants, that the complainant's statement that $5,000 would cover the indebtedness of the corporation, other than money borrowed from the banks, was a fraudulent representation or warranty. The complainant's version of the case was the expression of an opinion, and that he did not represent anything to Howard about the matter; that is, that the conversation with Pugh was nothing more than the expression of an opinion, and that Pugh was president of the corporation.

We think it was the function of the chancellor as a trier of a trier of facts to determine whether it was a representation or a mere expression of opinion, and it was also his function as a trier of facts to determine whether the complainant made such statements to Howard. The appellants proceed upon the theory that Pugh's admitted representation to Howard was binding upon the complainant, because they insist that Pugh was acting as agent for the complainant in selling the stock to Howard. In our opinion, that assumption is not supported by the record. Gressett's testimony, and the correspondence, show that Pugh and Howard were dealing with Gressett, and not that Pugh was dealing with Howard for Gressett.

The chancellor had a right to accept Gressett's version of the matter, and if we take his evidence as true it would certainly appear that Pugh was not representing him in the deal. We think the whole transaction shows that Pugh was a joint purchaser in this arrangement with Gressett. It does not clearly appear what the relation between Pugh and Howard was as to each other, but it does appear that they were buying from Gressett, and intended to get rid of Gressett as manager, as well as to secure his stock in the corporation.

We will next take up the contention that there was no contract of meeting of the minds of the parties on any definite terms, so as to make a completed contract. Appellants earnestly insist that there never was any agreement which would constitute a binding contract, regardless of the Statute of Frauds. The testimony shows that Gressett's proposition was that he would take $4,000 in cash, and that he would undertake to carry the balance if they could not procure all cash. The defendant Pugh, writing to Gressett in the letter set out above, says: "Howard and myself made the trade O. K., and he will be over Wednesday morning to take charge.

. 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 up."

And in the telegram of October 2, 1922, he says: "Everything O. K. Howard will be there Wednesday morning."

Then, after a conversation over the telephone between Pugh and Gressett, Pugh sent the following telegram on October 4, 4, 1922: "Howard comes to Meridian to-day 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."

The telegram refers to some agreement, and the contract it refers to is to be in line with the agreement. It was held in Mercer Electric Mfg. Co. v. Connecticut Electric Mfg. Co. 87 Conn. 691, 89 Atl. 909, that the fact that some of the terms of an offer were stated in a conversation would not make the offer indefinite or uncertain, since it was capable of precise ascertainment. Therefore, to find out what the agreement was referred to in the telegram, we must have recourse to the evidence. In this telegram it is clearly stated that "we are to buy your stock for ten thousand dollars." The amount of the purchase was full and specific; the terms to be agreed on by October 15th, 1922.

Now, when we refer back to the agreement as disclosed by Gressett's evidence, we get precisely what the terms were; that is, they were to execute their notes for the $6,000.

-sale of corporate stockabsence of details.

It is true that there is some uncertainty as to exactly how long the notes would run, or precisely how they would be executed, but they were to be carried under the agreement by Gressett. Under this agreement the appellants bound themselves to execute notes, and Gressett bound himself to accept such notes. That was the verbal agreement. Gressett's reply to the telegram, "I confirm sale twenty shares Meridian Chero-Cola Bottling Company stock to you for ten thousand dollars, terms and payment to be arranged negotiable by October fifteenth," shows his interpretation of the contract, and, as that letter was acted upon in taking charge of the plant, we must construe the matter in the light of the evidence and in his telegram of acceptance, and the appellants must be assumed to have acquiesced in this interpretation, because after receiving it they took charge and remained in charge of the business until the filing of the suit.

In 13 C. J. 268, under the head of "Intention Capable of Ascertainment," it was said: "If, with the aid of the usual tests and principles of construction, the court is able to ascertain and to enforce the intention of the parties, their agreement will not be held uncertain. So, an agreement drawn up by illiterate persons will not be held uncertain, if it is possible for the court to ascertain their meaning. While a contract, incomplete on its face, may thereby be ambiguous, it is not necessarily void. Absolute certainty is not required. That is certain which may be rendered certain, according to the maxim, 'id certum est quod certum reddi potest.' A promise not in itself certain may be rendered certain by a reference to something certain. An offer to sell goods need not specify the price, for, if no price

is stated, it will be presumed that the reasonable market price was intended. And in other like cases, when the terms are not absolutely certain, it is held that the parties have in effect referred the matter to a court or jury in case they disagree about it themselves."

In 13 C. J. 271, it is said:

"Section 62. There are many terms not actually expressed in the offer, which are implied by law, and which are as binding on both parties after acceptance as though actually spoken or written into the contract. A contract, it may truly be said, includes not only what the parties actually write down or say, but all those things which the law implies as part of it, and likewise all matters which both the parties intend to express, but do not.

"Section 63. Every trade, business, or calling has its usages, and persons who make offers relating thereto assume that all the customary incidents of such callings shall be part of the agreement, and hence do not expressly refer to them. Although unexpressed, they are implied terms of the contract; and this is true in the case both of written and of oral contracts."

In the case of Joy v. St. Louis, 138 U. S. 1, 8, 43, 34 L. ed. 843, 847, 856, 11 Sup. Ct. Rep. 243, the Supreme Court of the United States dealt with a case of a contract between two railroad companies and the city of St. Louis, said agreement being made by the park commissioners on behalf of the city of St. Louis, and said agreements being tripartite agreements between the park commissioners and the two railroad companies, whereby the right of way through the park was granted to one of the railroad companies, which covenanted to permit other railroads to use such right of way upon such terms and compensation "as may be agreed upon by such companies." It was insisted there that the contract was uncertain because the agreements were thereafter to be made and were not expressed in the contract. At page

31, 138 U. S., page 852, 34 L. ed., page 251 of the Supreme Court Reporter, the court said: "Said party of the second part shall permit, under such reasonable regulations and terms as may be agreed upon, other railroads to use its right of way through the park and up to the terminus of its road in the city of St. Louis, upon such terms, and for such fair and equitable compensation to be paid to it therefor, as may be agreed upon by such companies.' It is to be construed in connection with ¶ 12 of the same agreement. In regard to these two paragraphs, the opinion of the circuit court says: 'It will be observed that by the 9th paragraph the county road agreed to permit the use of its right of way by other railroads. Whether a like obligation was assumed by the Kansas road depends upon the last sentence in the 12th paragraph, which purports to grant to the Kansas road the right to occupy and enjoy the right of way through the park jointly with the county road, "on the terms of the said contract between them, and under the same terms and conditions as are hereby and hereinbefore imposed upon said party of the second part, and which are hereby assumed by said party of the third part as to improvements, except as to building a depot and switch in said park, which the party of the second part is to do itself." It must be conceded that the meaning of this language is not perfectly clear. It is claimed by the defendants that the words "as to improvements, except as to building, etc.," qualify, not only the immediately preceding clause, commencing "and which are hereby assumed," but also the one prior, commencing "and under the same terms and conditions," and therefore that the terms and conditions as to improvements are those alone cast upon the Kansas road. This would make the two clauses but a single compound one, qualified by the following relative clause "as to improvements," etc. As against this it must be observed that, grammati38 A.L.R.-44.

cally, a relative clause generally qualifies its immediate antecedent, and therefore, in this case, would refer simply to that clause which provides for the assumption by the Kansas road. This natural grammatical construction is strengthened by the punctuation-a comma after the words "party of the second part," and none after the words "party of the third part," which seems to separate the entire first clause from the second and its qualifying terms. I know that the matter of punctuation is never relied upon to defeat the obvious intent; but, when the meaning is doubtful, the punctuation is certainly a matter_tending to throw light upon it. Further, there are not simply two, but really three, antecedent clauses, the first one being "the terms of the said contract between them;" that is, the two railroad companies. Very clearly this qualifying clause does not refer to that, and therefore it should not be held to qualify the second, unless the obvious intent compels such construction. It is objected that the clause commencing "and which are hereby assumed" is, under this construction, superfluous. think not. These improvements called for the expenditure of money, and the idea seemed to be that the Kansas road should not only hold its rights upon certain conditions, but that, as to those involving expenditure of money, it should expressly assume the performance.''

999

I

At page 43, 138 U. S., page 856, 34 L. ed., page 255 of the Supreme Court Reporter, the court said: "It provides that the County Company 'shall permit' other railroads to use its right of way. This is to be done 'under such reasonable regulations and terms as may be agreed upon,' and 'upon such terms, and for such fair and equitable compensation to be paid' to the County Company 'therefor, as may be agreed upon by such companies.' Not only are the regulations and terms to be reasonable, but the compensation is to be fair and equitable. Although the statement is that the compensation

is to be such 'as may be agreed upon by such companies,' yet the statement that it is to be 'fair and equitable' plainly brings in the element of its determination by a court of equity. If the parties agree upon it, very well; but, if they do not, still the right of way is to be enjoyed upon making compensation, and the only way to ascertain what is a 'fair and equitable' compensation therefor is to determine it by a court of equity. Such is, in substance, the agreement of the parties. The provision cannot be construed as meaning that, if the parties do not agree, there is to be no compensation, and that, because there can in that event be no compensation, there is to be no enjoyment of the right of way. In this view, it cannot be said that the court is making an agreement for the parties which they did not make themselves. Emery v. Wase, 8 Ves. Jr. 505, 32 Eng. Reprint, 451; Milnes v. Gery, 14 Ves. Jr. 400, 33 Eng. Reprint, 574; Gregory v. Mighell, 18 Ves. Jr. 328, 34 Eng. Reprint, 341; Providence v. St. John's Lodge, 2 R. I. 46; Dike v. Greene, 4 R. I. 285."

In the case of Chesapeake & O. R. Co. v. Herringer, 158 Ky. 267, 164 S. W. 948, an agreement was made between the landowner and the railroad company by which the railroad company agreed to put in a crossing for the landowner at a point to be agreed upon by the parties. It was held that this was not void, because the element of reasonableness entered into it. At page 270 the court said: "The contract is not void, because it is provided that the parties are to agree upon the location of the crossing, and Gilkerson is named as a representative of the company, who is to act for it. The third crossing is a part of the consideration For the things granted by the contract, and the railroad company cannot take the privileges granted and withhold the consideration. The substance of the contract is that Herringer is to have the third crossing. Only the location of that crossing is left undetermined.

If

the parties cannot agree upon an equitable and just location of the crossing, the chancellor must locate it for them. Slade v. Lexington, 141 Ky. 218-221, 32 L.R.A. (N.S.) 201, 132 S. W. 404, and cases cited. On the return of the case to the circuit court, it will be transferred to equity, and the court, on the evidence now in the record and such other evidence as either party may offer, will fix the point at which the crossing is to be placed, and give the railroad company a reasonable time to put it in."

See, to like effect, Miller v. Kendig, 55 Iowa, 174, 7 N. W. 500; Worthington v. Beeman, 33 C. C. A. 475, 63 U. S. App. 536, 91 Fed. 232; Burton v. Wells, 30 Miss. 688.

In Burton v. Wells, supra, the plaintiff sued the defendant upon a claim for $50, and judgment was rendered for the defendant, and the plaintiff prosecuted his appeal to the circuit court, where judgment was rendered for the plaintiff below, and from which judgment the case was brought to this court. The facts as stated by the court are as follows: Burton, the defendant below, and Wells, the plaintiff, purchased jointly a tract of land from one Rowe, and paid each on account of the purchase the sum of $50; Rowe, at the same time, made them a deed for the land, and took the notes of each party for the balance of the purchase money. This deed not having been recorded, Burton afterwards proposed to Rowe to make to him (Burton) a deed for the entire tract of land; Rowe agreed to do so if Wells would consent to the arrangement. Wells, being approached on the subject, consented, on condition that Burton would take up the notes given by Wells, and would pay back to Rowe, for the benefit of Wells, the $50 which had been paid. This answer was communicated to Burton, who did not agree to pay back the $50, but only to take up Wells's notes. Rowe, however, made the deed as requested by Burton, which deed he then received. It is not shown by the evidence what became

of the deed which had been previously made to Burton and Wells. Upon this state of facts the question for decision is whether Burton, taking the deed from Rowe, knowing at the same time the terms prescribed by Wells as the conditions upon which he (Burton) might take the deed to himself, must be understood as agreeing to those terms. It is true that Burton said that he would not pay back to Wells the $50 which he had paid; and it may be conceded that as a general rule the law will not imply a promise, where the party has refused to make an express promise in regard to the same matter. But here the promise to pay the $50 was the condition upon which Wells agreed that the deed might be made to Burton. His right to the deed depended upon his willingness to perform the condition, and, if he refused to perform the condition, he must be understood, at the same time, as refusing to receive the deed. And the converse of this proposition must be held as equally true,-if he received the deed, he received it with the condition annexed by Wells, that he (Burton) should pay back the $50. He must be understood either as wholly agreeing, or disagreeing, to the condition. If wholly disagreeing, he, of course, declined receiving the deed; and, if wholly agreeing, he undertook to perform the conditions annexed by Wells.

So, in the case before the court, the defendants having accepted the plant and the management thereof, they must pay the consideration which they agreed to pay. The defendants could not take charge of the plant and operate it, refusing to rescind after having knowledge of the debts which the company owed to restore the status quo ante, and escape their obligation imposed by the agreement under which they assumed charge and received the benefits of the possession and management of the plant.

There are a number of other points presented, but we do not think they call for a response in this opinion.

The judgment of the court below will be affirmed on condition that the appellee surrenders the shares of stock to the defendants, it appearing that he has offered to do so and they had declined to receive such shares.

Sykes, J., dissenting:

Section 3123 of Hemingway's Code (§ 4779, Code of 1906) provides that "a contract for the sale of any personal property, goods, wares, or merchandise, for the price of fifty dollars or upwards, shall not be allowed to be good and valid unless the buyer shall receive part of the personal property, goods, wares, and merchandise, or shall actually pay or secure the purchase money, or part thereof, or unless some note bargain be made and signed by the or memorandum, in writing, of the party to be charged by such contract, or his agent thereunto lawfully authorized."

Stocks in corporations are personal property. In this case the negotiations were for the sale and purchase of twenty shares of stock for an alleged price of $10,000. None of the stock was delivered. All of us

agree that the letters and telegrams were insufficient as to the terms and conditions of the sale to constitute a note or memorandum in writing under this statute. Three of the judges, however, think that the turning over of the management of the plant to Howard was a delivery to the buyer of a part of the personal property under this statute. I disagree with this conclusion.

There were 100 shares of stock of this corporation. The appellant Pugh and his wife owned eighty shares, and the appellee, Gressett, twenty shares. The parent company was dissatisfied with the management of Gressett. This led to negotiations for a sale of Gressett's stock. It was understood between Pugh and Gressett that, in case Gressett's stock was sold, he was also to retire from the management. The negotiations were not for the purchase of a majority or controlling number of shares of the cor