Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1899-03-16
EZRA D. HASKINS
WINS HIS SUIT.
John Dern Must Pay 81 Per Share
for Certain Mining Stock.
SUPREME COURT so DECIDES
, Judgment Rendered by Judge therr,
is Sustained written Agree
uent was binding.

An opinion. affirming the Judgment OF
the lower court. was handed down ny
the Supreme court today In the case
OF Ezra ID. IIasklns W John Dcrn. APP
pcilant.
This cane was an appeal from n ver-
diet rendered BY a jury In Judge
Cherry's court In favor Of the plaihtiH.
In December, 1895. Haskinn. who was
the owner ~ g,0iO shares " the caplthl
stock " the silver Mining and Mining
company, caused certificate Tor the
shares to he made out In the name OF
the defendant. whereupon the lnttef
delivered TO plaintif the following
written agreement.
salt Lake city. Utah,
December 20. 1895.
Received Of Ezra u. Hasklrn one
certificate 81 stock In the silver Lode
Mining and Milling company for 2vlv
shares, No. &C. issued In the nam" OF
John bern. I agree 10 return this stock
TO said Ezra y. Haskins on August l.
.. or pay to said Ezra ID. HaAkins
the sum OF ~ per share therefor. said
John bern agrees to pay all legal as
seasfnentr levied upon said stock dur
Ing tho time he holds the same. II
n agreed that N Hudson Smith takes
w tNe NrilNn WHICH nc nus on v'"''
shares on the capital stock OF said conf
pany. that Mr. Dern VIII return said
stock tn said iiaHkins upon the taking
up n said option.
JOHN BERN"
Defendant did not return the stock
on August LIST. 1896. and on the 2sth
Of August, In the year following. plain
TN brought suit against defendant. al
lcTlng the ownership Of the stock In
December. 1886. the delivery of the
stock 10 the defendant. the contract.
the failure to return the stock within
the specified time ana the refusal II
defendant to pay for the stock at the
price and figure agreed upon.
In his answer. defendant admitted
the transfer and agreement. but. as
an affirmation defense, alleged that the
stock was delivered to him under the
following conditions. and FOR the fol-
lowing purposes, tO-wit' That the
stock of the company consisted Of &c.,.
900 shares. that defendant and his as.
Hpciatea were the owners ~ 5000
shares. that the soi0 shares. when
added 90 the is0oo shares. constituted
a majority 81 the stock. that plaintiff
was DESTROYS that defendant and his
business associates should control the
company. and 60 accomplish that result
certificate was made out In the name
Of the defendant for 1910 shares owned
by the plaintiff. and delivered to the
defendant with the intent that de-
PENDANT should have power to vote the
same M meeting of the company.
gust LIST. 1896; that defendant rccclys.,
the 2.oio shares for no other purpose,
ana under no other agreement. and for
no other consideration. and that he
faithfully carried out the conditions
upon which he received the stock. and
at all times. from December .oth, isss.
To and Including August ist. 1856 he
had the stock In his possession and was
ready and willing 10 deliver II 10 the
plaintiff upon demand: that the stock
wnr nt all times. from December 90
1895, worth not To- exceed ten cents per
share; that since August I, 1896, the
defendant has frequently offered 10 re-
turn the stock To plaintiff. who refused
To receive the same. that plnintin
never demanded the return ~ the
stock. or notified the defendant where
nor IN whom he should deliver H."
when the ease came ON for trial
n was admitted that defendant ala not
return the stock on August I. iSas De-
PENDANT then offered tn cali witnesses
10 prove the affirmative allegations Of
his answer. The plaintim objected 10
the Offering of the testimony. aud the
court sustained the objection. The
defendant thercupon refused o. no any
further. when Judge Cherry Instructed
the Jury 10 bring In "a verdict for the
plaintiff From that Judgment de-
PENDANT appealed.
one Of the questions arising was
whether or not parole testimony was
admissible TO alter or vary the terms
~ the written agreement. The court
holds that In the absence 81 fraud, mis-
take or ambiguity. parole evidence Ia
not admissible.
n was alro contended by counsel for
defendant that IN. agreement referred
10 was a contract for bailment and not
a contract NJ rule or conditional sale
The court holds thin point was not well
taken for the reason that defendant
had the right 10 return the stock nt a
specified time, OF pay 81 therefor ana
retain, whether the plaintiff 20 desired
or not The fact that he had the op-
tlon 10 return or pay for II made him
liable for the controet price.
n was also commended by counsel for
defendant that the contract requiring
the defendant 10 pay 81 per share II he
ala not return II, was a penalty ana
not an agreed price. The court holds
thnt penalty IN a punishment Inn
posed by law or by contract for doing
or failing 10 do something that II was
the duty Of a party to do, In this case
the court finds that there was duty
Imposed upon the defendant for tho
simple reason he could have either re-.
turned II or have kept H. The court
concluded by holding that under the
agreement the title TO the stock passed
70 the defendant. subject To the option
To return u on tho LIST Of August, 1896.
or 10 pay 81 per share for II. and that,
having retained the stock for nearly
one year after the time limited In the
contract he became liable for the
amount agreed upon.
Other questions were raised but the
court did not deem n discussion OF
mem necessary Finding no reversible
"rraor IN the record the court orders
an affirmation 81 the trial courts judg-
ment.
This opinion II by Justice Miner.
chief Justice nartch and Justice pas.
kin coneurring.
Setting OF Jary Gases.
Judge cherry made q setting Of thlr.
tN=fnuf Jury cases today for trial ...,