*30ON REHEARING.
Beck, J.Upon the petition of plaintiff a rehearing was allowed in this case. It has been again submitted upon the petition for rehearing, which stands for the argument of plaintiff. We have not been favored with an argument by counsel for defendant upon the re-submission. We will proceed to notice the points made by the petition for rehearing.
Counsel concede the cause is not triable ele novo. In view of the numerous decisions of this court on that question he could not have claimed otherwise. If this concession had not been made the ruling would have been the same. The main point is, whether the court found as a fact that there was an agreement or contract to take from Foster his stock. It is insisted the court intended by the use of the term “original agreement, ” to find only that there was such .an agreement among, at least, some of the stockholders preceding the organization of the company. The evidence tends strongly to show there was such an agreement between all the persons who afterward became stockholders, except Mr. Scofield. Whether this was the contract referred to by the court, to say the least, is doubtful. But let this be conceded. The corporation was formed in September, 1872. Foster testified that Handy desired him to raise money for the company. Before doing so he wanted the contract as to the stock ratified by the company; that is to say, he desired the company to agree to do what was agreed upon before the organization. Whereupon Merrill, the president of the company, wrote him as follows:
“Black River Falls, Oct. 1,1872.
“II. B. Foster, Dubuque, Iowa.
“Dear Sir : — You inquire of me how I understand it in case the Iowa Lumber Company should conclude after a time to substitute some other person in your place for secretary and treasurer. I understand 'in that event, unless it was for some act such as embezzlement or some such act, you would *31be entitled to receive your capital stock after sharing in profits or loss.
“Very truly yours,
“L. Gr. Merrill,
“President Iowa Lumber Company.”
It is not for us to say what we would have found as an original question, but we are constrained to believe the court below could well have found this letter constituted a contract •on the part of the company. It is certainly evidence tending to establish that conclusion, and we cannot say there was no evidence on which it may be based, and the court was governed by passion or prejudice and not by the evidence. The authority of Merrill to make such a contract is ample. The articles of incorporation and by-laws vested in him the supreme and absolute control of the company. Wliat he did must be held to be the act of the company — at least the court below was justified in so finding. We have thus referred to some of the testimony because it is now urged that there was absolutely no evidence on which the finding can be sustained.
2. practice in the supreme court. This case is to be" tried here upon exceptions duly taken and errors properly assigned. It is insisted that the rule of damages adopted by the court below is incorrect, and that there is a variance between the finding of the court and cross-petition. If the exceptions taken and assignment of errors are carefully examined it will be seen that these matters are not included in either. While the exceptions are in form to the findings of facts, yet they are alone directed to the conclusions of law. This point is expressly made by the appellees. No allusion was, therefore, made in the opinion to such matters. Nor is there an exception 'to the effect that the court erred in the rule of damages adopted, or that the finding was not warranted by the pleadings. If the latter had been made in the court below the pleading could have been amended, on a proper showing, after the trial.
*32The Circuit Court found that there was a valid agreement, between the plaintiff and Foster, by which plaintiff was bound to take the stock of defendant and pay him its value and its earnings.
Counsel make the point in the reargument that, as the possession and control of the stock had never passed to plaintiff, defendant is entitled to recover, for the breach of' this agreement, the difference between the contract price and the value of the stock when the contract was broken. By the decree of the Circuit Court defendant recovers the value of the stock with its earnings. This counsel claim is erroneous, and base an objection thereon.
We will consider another objection urged by counsel, the answer to which will afford a complete refutation of their position upon this point of the ease. It is this: The defendant Foster is not entitled to a specific performance of the agreement of plaintiff to take the stock, for the reason that he makes no allegations in his petition to support his rights to such relief, and prays for no such relief. The prayer for relief of Foster’s cross-bill is not set out in the abstract; we-are not, therefore, advised whether counsel’s statements be correct. But Foster does allege that he has tendered his-stock to plaintiff, and offers in an amended petition to make transfer thereof. The Circuit Court found that Foster had the right to enforce the agreement by returning the stock and recovering the value thereof, as' provided in the decree. There was ground for this relief in the testimony. Foster bought the stock upon an agreement that he should be treasurer of the company, and if he was not continued in the office the stock should be bought back by plaintiff. It is clear that he is entitled to the relief of the specific enforcement of the contract to purchase the stock, in order that equity may be done. He would have full and complete relief' in no other way. No objection to this relief was made in the court below, on the ground now urged in this court by the counsel for plaintiff. Surely we cannot deprive Foster off *33the relief to which the finding of the court below, based upon the testimony, shows him to be entitled, on the ground, first urged in this court, that no prayer for such relief is found in the abstract. It may be observed that the abstract does not show that no such prayer for relief was made by Foster; it is simply silent upon this point. Had timely objection been made in the court below, Foster could have amended his cross-bill. Plaintiff had opportunity to raise the objection now urged by him before the trial, at the trial upon objection to evidence, and, finally, by exceptions to the findings of the court, and objections to the decree.
We thus see that Foster, upon the case presented by the findings of the court and the evidence, is entitled to the specific performance on the part of the plaintiff of its contract to purchase the stock at its value. The enforcement of this right is provided for in the decree, which renders judgment against plaintiff, to be enforced upon Foster transfering the stock as contemplated by the contract. The amount of the judgment, the measure of damages, should of course be, as it is, the value of the stock with its earnings. This conclusion disposes of counsel’s objection founded upon the measure of damages allowed Foster by the judgment.
The conclusion we reached in the former opinion is adhered to, and the decree of the Circuit Court will be, as therein directed,
Modified and affirmed.