[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 564
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 565 The plaintiff, as executrix of her deceased husband's estate, brought this action to recover from defendant the sum of $2,000 and interest, alleged to be due by reason of an unfulfilled agreement to repurchase certain corporation stock sold by the defendant to the decedent in his lifetime. *Page 566
As a cause of action, the plaintiff alleged that on or about the fifteenth day of September, 1915, William Yancey Hulen, the decedent, purchased from defendant twenty shares of the capital stock of the Santa Cruz Fruit and Olive Canning Company, and paid therefor the sum of $2,000; that at the time of the purchase, and as part of the consideration and inducement offered by defendant to her husband to purchase the stock, the defendant agreed in writing to repurchase the same if Hulen wished to sell in one year, and to pay therefor the sum of $100 per share, and, in addition, interest at the rate of twelve per cent per annum from the date of the purchase, provided no dividend had been paid on the stock; that within one year, and immediately upon the expiration of that period from the date of sale, Hulen demanded that defendant repurchase the stock at the agreed price, and that plaintiff, as executrix, after the death of Hulen, made like demand and tendered such stock to defendant; but that defendant refused at all times to repurchase the same. There is an allegation that no dividend has ever been paid upon the stock, which has no value, and plaintiff has been unable to sell the same. The prayer of the complaint is for judgment against the defendant in the sum of $2,000, together with interest at twelve per cent and costs of suit. The defendant answered, specifically denying the allegations of the complaint. The finding of the court was in favor of plaintiff, and judgment followed as prayed for. The defendant has appealed.
From the record it appears that prior to September, 1915, there had been formed a corporation known as the Santa Cruz Fruit and Olive Canning Company. The defendant Stuart owned the controlling interest in the company at that time and was its president. The company being in need of money with which to pay its help during the canning season of 1915, the defendant entered into an arrangement with Hulen, plaintiff's testate, that if Hulen would purchase twenty shares of the capital stock of the corporation at the par value of $100 per share, he (defendant) would buy the stock back in one year. Hulen accepted the arrangement and paid $2,000 to the defendant. At the time, and as part of the transaction, the defendant executed and delivered to Hulen an agreement reading as follows: *Page 567
"Santa Cruz, California, Sept. 15, 1915.
"This is to certify that W.Y. Hulen has bought Twenty (20) Shares of the Capital Stock of the Santa Cruz Fruit Olive Canning Company at $100.00 a share, the total amount paid being Two Thousand Dollars ($2,000).
"And I, A.V. Stuart, agree to buy said stock from Mr. W.Y. Hulen, in one (1) year from this date, including 12% interest per annum, in case there be no dividend paid on said stock by the end of one year and providing Mr. W.Y. Hulen wishes to sell said stock at the date above named at par value, $100 a share.
"And furthermore, will say this agreement is made in good faith in duplicate.
"A.V. STUART, "President, Santa Cruz Fruit Olive Canning Co.
"Witness: —
"DANIEL F. GALLIVAN.
"This is to certify that I further agree to pay all or any assessments that may be made on said above capitol Stock of the Santa Cruz Fruit Olive Canning Co. during the life of this contract being one Year from this 15th day of September, 1915.
"Signed — A.V. STUART,
"Pres. of the Santa Cruz Fruit Olive Canning Co."
No dividends were paid within the year, and upon the expiration of that period Hulen demanded of the defendant that he repurchase the stock. Stuart refused. There is a flat contradiction in the record as to what occurred in this connection. The plaintiff testified she was present when demand was made by her husband upon Stuart that he repurchase the stock. The defendant replied, "Oh, no, you got the stocks there, I can't buy them." "He said for us to hold them, and then if we didn't get no dividends at the end of the next year he would buy them, for he was very bad off for money." Defendant denied that any demand was made upon him, and testified that at the expiration of the year Hulen signified his willingness to keep the stock. On October 7, 1916, shortly after the expiration of the year, the defendant gave to Hulen a check of the Santa Cruz Fruit and Olive Canning Company, signed by the secretary and by himself, as president, for $240. Mrs. Hulen testified that this check was for the interest at twelve per *Page 568 cent, according to the terms of the agreement. Defendant's testimony is that at the end of the first year Hulen came to him "about getting a dividend or something. . . . He did not say he wanted him [Stuart] to take the stock back. . . . He was perfectly satisfied, and so he says, 'Our year is up on that contract for that interest or the dividend.' . . . I said, 'What do you want to do about it?' and he said, 'All I want is the $240 or whatever dividend they are making, if it is that much, I want that.' I said, 'How about keeping in the company, — are you satisfied?' 'Perfectly satisfied, Mr. Stuart,' he said, 'I am willing to go on.' " The contention of the defendant, however, was not, in the opinion of the trial court, supported by sufficient evidence upon which to base a finding, and it found that a demand for the repurchase was in fact made by Hulen.
[1] The complaint clearly states a cause of action for the return of the purchase price of the stock with interest in accordance with the terms of the agreement executed by the defendant to Hulen. (Schulte v. Boulevard GardensLand Co., 164 Cal. 464, 471 [Ann. Cas. 1914B, 1013, 44 L.R.A. (N.S.) 156, 129 P. 582]; Dickinson v.Zubiate Mining Co., 11 Cal.App. 656, 662 [106 P. 123] Williamson v. Marshall, 54 Cal.App. 24,28 [200 P. 1058].) [2] On still another theory the complaint states a cause of action, under section 3311 of the Civil Code, which provides: "The detriment caused by the breach of a buyer's agreement to accept and pay for personal property, the title to which is not vested in him, is deemed to be the . . . excess, if any, of the amount due from the buyer, under the contract, over the value to the seller. . . ." Having alleged that the stock had no value, and that the defendant promised to pay a specified amount, for which judgment is prayed, it was unnecessary to allege that plaintiff had been damaged in such sum. [3] An allegation and proof, under the first theory, of the value of the stock was also immaterial for the reason that plaintiff's right to repayment did not depend upon its value; and as to the statement of a cause of action, it is likewise immaterial whether or not defendant accepted plaintiff's tender of a return of the stock. (Dickinson v. ZubiateMin. Co., 11 Cal.App. 663 [106 P. 123];Schulte v. Boulevard Gardens Land Co.,164 Cal. 471 [Ann. Cas. 1914B, 1013, 44 L.R.A. (N.S.) 156,129 P. 582].) *Page 569 Even though the plaintiff in stating her cause of action had mistaken the measure of the recovery which she sought, it would have made no difference. [4] It is possible for a party to a contract, broken by the other party to it, to make such an election of remedies as to preclude him from thereafter seeking and obtaining the remedy of damages, but if he has not made such an election and is entitled to recover, the fact that he seeks damages according to a wrong measure is almost wholly inconsequential and does not preclude the court from according him the damages to which he is entitled according to their true measure. (Phillips v. Stark, 186 Cal. 369,371. [199 P. 509]; Bartlett v. Odd Fellows' Sav.Bank, 79 Cal. 218, 223 [12 Am. St. Rep. 139, 21 P. 743].)
[5] The title to the stock passed at once to Hulen when issued, subject to his right to rescind and return the property under the terms of the agreement. (Guss v.Nelson, 200 U.S. 298, 302 [50 L.Ed. 489, 26 Sup Ct. Rep. 260]; Sturm v. Boker, 150 U.S. 312, 328 [37 L.Ed. 1093, 14 Sup. Ct. Rep. 99, see, also, Rose's U.S. Notes].) The duty of redelivery of the stock by Hulen to Stuart, and the payment for the same by Stuart, became concurrent, mutually dependent, and to be performed simultaneously. [6] This being true, Hulen, before he could require the performance of the duty devolving upon Stuart to repurchase the stock should have offered and have been able to fulfill all conditions concurrent so imposed upon him, upon like fulfillment by Stuart. (Porter v. PlymouthGold Min. Co., 29 Mont. 347, 360 [101 Am. St. Rep. 569, 74 P. 938]; Hellings v. Heydenfeldt, 107 Cal. 577,585 [40 P. 1026].)
There is an allegation in the complaint that the stock was tendered to the defendant, and the trial court has found that it was, but the evidence does not support the finding. [7] It does appear, however, that the defendant, in response to the demand made by Hulen, immediately admitted his inability to comply with it, thus rendering a tender unnecessary. (Tatum v. Ackerman, 148 Cal. 357, 360 [113 Am. St. Rep. 276, 3 L.R.A. (N.S.) 908, 83 P. 151]; Civ. Code, sec. 1440) [8] Performance was excused when Hulen was induced not to make the tender or offer of performance by the act of Stuart in promising to buy the stock in another year if no dividends were paid. *Page 570 (Civ. Code, sec. 1511, subd. 3; Pierce v.Lukens, 144 Cal. 397 [77 P. 996].) Having induced Hulen to act upon that belief, it is too late now for defendant to change his position and defeat the plaintiff on the ground that a complete technical tender was not made. (Herberger v. Husman, 90 Cal. 583, 585 [27 P. 428].)
The appellant contends that the evidence fails to establish that a tender and demand for the repurchase of the stock was made during the life of the agreement. Assuming that the testimony of plaintiff is conflicting as to whether or not a first demand was made within one year from September 15, 1915, it clearly appears that a demand was made at the expiration of the year. The defendant testified that "at the end of the first year, that is along about September 15th or 16th, 1916, Mr. Hulen came to [him] about getting a dividend or something." Defendant's obligation was not to buy the stock from Hulen "within" one year, but "in one year from date," implying that the repurchase would occur at the end of the period mentioned. (Standard Dictionary.) [9] Viewed in the light of the entire transaction, including the conduct of the parties according to the testimony of both plaintiff and defendant, the decedent Hulen had no cause of action against defendant until he waited the passage of the year, and then notified defendant that he desired to sell. [10] Assuming a demand was made before the expiration of the year, Hulen preserved his cause of action by renewing his demand and notifying defendant that he desired to sell, when he received the check for the interest in October following. The renewal of the notice and demand was not an offer of performance after a specified time fixed therefor, within the meaning of section 1490 of the Civil Code, but a further (possibly the first) notice and demand, after defendant was in default. (Howard v. Galbraith, 13 Cal.App. 373,377, 378 [109 P. 889].)
There is evidence in the record from which appellant argues that Hulen did not intend to vest title to the stock in Stuart at the time he made the demand for the repurchase. It is apparent that the trial court was not impressed with the weight of such testimony. It has accepted as true the testimony of the plaintiff that neither her husband nor she ever attempted to sell the stock. As executrix *Page 571 of her husband's estate, she has it in her possession. The claim of the defendant that the $240 paid to Hulen was in the nature of a dividend is met by the testimony of the plaintiff that it was paid and accepted as, and was in fact, interest paid in accordance with the terms of the agreement. There is no satisfactory proof that any dividends were ever paid by the corporation. [11] Stuart, and stockholders to whom he had given agreements to repurchase similar to the one entered into by him with Hulen, sold their stock upon reorganization of the canning company. Hulen did not. Appellant advances this fact as an argument in further support of his contention that Hulen was satisfied with owning stock in the concern, and desired to retain his connection with the business. The weight and effect to be given to this circumstance, and to the testimony by which it was established, were matters for the consideration of the court below. [12] Acts of a party, after breach of a contract by another in dealing with the property which is the subject of the transaction, do not necessarily deprive him of his right to maintain his action for damages. (Phillips v.Stark, supra.)
There remains to be considered the question of the sufficiency or insufficiency of the findings to support the judgment under either theory of the case. The court found a tender, but there is no evidence to support the finding. It did not find any facts excusing a tender. The findings in other respects are as comprehensive as the pleadings. The court found that when demand was made by Hulen, the defendant refused, and at all times since has refused, to repurchase the stock. The evidence is that he said he could not. [13] After one party to a contract has notified the other that he will not, or cannot, perform, the burden is upon him to show that prior to the time of performance he notified the other party of his willingness and ability to perform. (Howard v. Galbraith,supra; Tatum. v. Ackerman, supra; Civ. Code, sec.1440) The ultimate fact was the amount, if anything, due plaintiff from defendant by reason of his refusal to repurchase the stock. This the court ascertained and found from the evidence, and necessarily included the whole controversy. (Tower v. Wilson, 45 Cal.App. 123, 133 [188 P. 87].) [14] We are entitled *Page 572 to draw necessary inferences from findings in order to support a judgment. (Lomita Land Water Co. v.Robinson, 154 Cal. 36, 49 [18 L.R.A. (N.S.) 1106,97 P. 10].) [15] From the facts found, and from the judgment ordered, it is evident, in the light of the entire record, that if more complete findings had been made they would have been adverse to the contentions of the appellant. If that be so, the failure to find further is not a ground for the reversal of the judgment. (Krasky v. Wollpert, 134 Cal. 338,342 [66 P. 309].)
[16] The plaintiff, as executrix, still retains possession of the stock. The certificates were produced in court, and can be indorsed and delivered to the defendant, upon payment of the amount of the judgment, as was contemplated inWilliamson v. Marshall, supra.
The judgment is affirmed.
Lennon, J., Lawlor, J., and Seawell, J., concurred.