Amador ledger., 1910-04-29
MCGEE vs..
BERGAVIN
Continued from Page 3


stock OF the Pittsburg Silver Peak.
1t is established by the law Of this state
that where one induces another to pur
chase stock in a corporation, upon the |
assurance that it will be of specified |
value on a certain date. he will be held |
to his agreement.
Gay VS. I,are, l03 Cal 459
Kilbrlde VS. Moss, ll3 Cal 432
Maurer VS. King, 127 Cal IA
Brkel Company VS. Marsh second
appellate dist. decided February Is, 1910
1t is also settled law of this state that
where contract is bad in part for being
in violation of law, but good in part,
and the good part can be separated,
that, which is good will be enforced
Civil Code, sec. 1899.
Jackson VS. Shawl, 20 Cal. 267.
City Carpet Works, VS. Jones 1o2
Cal. 567,
Porter VS. Fisher, "a Pac. 700.
McVicker VS. Mckenzie, l36 Cal. 66.
There is also another principle of law
to be kept in view in ascertaning the
validity Of the different parts of the
agreement made between plaintiff and
defendant, and that is, that for the
breach of al obligation arising from
contract, the measure Of damages is the
amount which will compensate the party
for all the detriment proXmately caused
thereby, and any contract providing
for greater amount is to that extent
void, except where from the nature of
the case it is impractcable or extremely
difficult to fix the actual damage.
Civil Code sections 1910, 1911, and
$500.
Wilmington Transportation Co. VS.
O'Nell 90 Cal. /.
Long Beach District VS. Dodge, las Cal
401.
The agreement between plaintiff and
defendant amounted to no more than
this: McCee agreed to purchase 200
shares of stock for $500, and in the
event that it reached a valuation of
| $1,000 by January lst following he obli-
gated himself to pay $500 to Bergevin,
while Bergevin on his part, promised
that said stock would be worth $1,000 at
that time. 1t seems apparent that as
McGee was to pay Bergevin $500 when
the stock reached a value of $1,000 that
McGee could suffer no detriment for the
breach of the obligation, if the stock
reached a valuation of $780, BY no pos
sible construction of the agreement
could McGee receive the whole Of the
$500 deposited by Bergevin, if the stock
reached valuation of more than $500.
If McGee had agreed to pay BergeVin
the value of the stock in excess of $500
instead of $500, if it reached the valua-
tion of $1,000, no argument could he ad
vanced as to the invalidity of the whole
agreement. BY placing a construction
upon the agreement that shall make Ber-
gevin liable only if the stock fails to
reach a valuation of $500 the real intent
of the parties seems to be carried out
and Bergevin is given the full benefit of
all the uncertainty in the agreement and
of everything that he might by any pos
sibility have claimed under the contract,
in any contingency. Bergevin by his
own voluntary act induced plaintiff to
purchase the stock upon the assurance
| not no fn Of
500 upon his investment of $500, some
what large ii is true, but nevertheless
lawful. 1t appears from the evidence
given in this court that by reason of the
disposal of the stock at 80 cents per
share, and the payments aggregating
$3.50, heretofore made to plaintiff, that
plaintiff McGee is still short $40 of his
lawful profit. 1t is unnecessary to enter
into any speculation as to the motives
that induced Bergevin to make the
agreement. His position is no different
than that of one, who. by his promise to
hereafter pay for the same, induces a
merchant to deliver goods 10 a third
party.
Defendants claim that plaintiff must
look for payment exclusively to the
check for $500 drawn upon the bank that
subsequently failed, merits but little at
tention, as in violation of the agreement
and without notice to plaintiff, he de-
posted with the secretary of the club
the check OF A. M. Bergevin & Co, in
stead of his own indiYidul check,
AS hereinfore pointed out any claim
made by plaintiff for a sum in excess of
the amount that will compensate him
for all the detriment proXimately caused