Opinion
6 Div. 673.
January 17, 1918. Rehearing Denied February 7, 1918.
Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.
James A. Mitchell, of Birmingham, for appellant. Percy, Benners Burr, of Birmingham, for appellee.
This is the second appeal in this cause. The first report of same will be found in 191 Ala. 339, 67 So. 609. The second trial seems to have proceeded upon count 12 of the complaint and the common counts, upon the theory of a subsequent agreement by the defendant to make a satisfactory settlement with the plaintiff for his $4,500 worth of stock if the defendant included it in the sale to V. C. Badham together with his own stock. There was judgment for the plaintiff, and the damage assessed was upon the evident basis that the stock had either been sold for or was worth $200 per share; the jury giving the plaintiff the difference between the par value, what the plaintiff owed the defendant for same, and the said sum of $200 per share, with interest up to the trial, and which was $7,693.75. The evidence did not show an agreement to pay the plaintiff $200 for the stock whether or no, or that the market value of the stock was that sum. The plaintiff testified that defendant agreed to make a satisfactory settlement with him for his stock and that it was agreed that it would be included in the sale to V. C. Badham and that all the stock was to be sold for $200 a share. Had the defendant sold said stock, including the shares to which the plaintiff had a claim, for $200 per share, and realized the price for same, or if the defendant agreed to account to him at said valuation whether or no, the verdict would be justified under the plaintiff's contention, and which was believed by the jury. But while the jury believed the plaintiff's contention that the defendant recognized his claim to the stock and agreed to settle with him for same, there was no proof that he agreed to pay him a fixed price for same in any event, and, at most, he did not obligate himself to pay more then he was to receive under the contemplated sale, the price and terms of which were known to the plaintiff. The sale was not carried out by V. C. Badham, and the plaintiff was not entitled to recover the amount awarded by the jury upon the theory that the defendant had realized the price fixed for the stock. The undisputed evidence shows that V. C. Badham did not and could not comply with the sale, and in order to hold the defendant liable as for a fixed sum under said contract, it was incumbent upon the plaintiff to show what the defendant could have realized by forcing V. C. Badham to comply with same. There is no proof that the defendant could have realized the sum of $200 per share or any fixed sum by enforcing the contract against V. C. Badham. On the other hand, the defendant testified that V. C. Badham was not able to and did not carry out the contract, and that he made a subsequent agreement with V. C. Badham in April 1908. This was or course, in effect, a rescission of the original contract of sale, and was not binding upon the plaintiff, as it was not made with his knowledge and assent, and he was not bound by the second agreement made between the defendant and V. C. Badham. Therefore, as the proof shows that the defendant did not realize the amount of the verdict plus the amount due by plaintiff to the defendant for the purchase money of the stock, and did not establish what price the defendant could have recovered had he enforced the original contract against V. C. Badham instead of rescinding the same by the substitution of a new one in April, 1908, the plaintiff could doubtless recover from the defendant as for the market value of the stock because of the fact that the defendant in rescinding the original contract without his consent became liable to account to him for the marketable value of same in the absence of proof showing that he could have realized more had he enforced the contract against his brother V. C. Badham. The trial court seems to have taken the position that there was not sufficient proof to establish the market value of the stock so as to support the verdict. While the price fixed in the attempted sale may have been some evidence of the market value, yet there was other evidence tending to show the assets and liabilities of the corporation, the inability and failure of the purchaser V. C. Badham to comply with the contract of sale, and all of which tended to show that the market value of the stock was not $200 per share.
The trial court did not grant the motion for a new trial because there was "no evidence" of market value, but because there was "no sufficient evidence in this case as to the market value." Therefore, under the rule laid down in the case of Cobb v. Malone, 92 Ala. 630, 9 So. 738, possibly the most often cited case in our reports, we cannot say that the evidence so plainly and palpably supported the verdict as to put the trial court in error for granting the new trial.
We are, of course, aware of the rule that the judgment of the trial court should be affirmed in granting a new trial if the same was justified under the record, whether the right reason was advanced for this action or not, and it may be that there were other rulings which could have justified the granting of this new trial, but which we do not now decide and will not discuss, preferring to ground this opinion upon the reason advanced by the trial court in awarding the new trial.
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, GARDNER, and THOMAS, JJ., concur.