of sale to defendant of 3,400 shares of stock in the Mary Mining Company, a corporation, tendering therewith the certificates of stock duly assigned to defendant. He avers that he tendered the certificates, so assigned, on the day the sale was to be consummated by delivery of the stock and payment of the money therefor. He exhibits the contract of sale, which he avers was written by defendant himself, which is as follows:

Aug. 29, 1910.

I agree to take 3,400 shares of Haze Morgan (Mary mining stock) at 35¢ per share on or before Sept. 15, 1910.

[Signed] M. J. Bartlett.

I, Haze Morgan, bind myself to deliver to M. J. Bartlett the above number of shares of Mary mining stock at 35¢ per share on the above date.

[Signed] Haze Morgan.

stock is not procurable in the open market for any known price, and its value is not readily ascertainable; that the stock has no provable value, and is sold by the holders thereof at different prices; that the enterprise of the corporation, from a financial standpoint, is uncertain, and therefore he cannot be compensated in damages for defendant's breach of contract.

Defendant answered, denying that he had contracted to buy the stock, but admitting that on the 29th of August, 1910, he and plaintiff had a conversation in regard to the purchase of the stock, and that the price talked of was 35 cents per share. He also admits that, on that day, a memorandum in writing was made of their agreement, which, he alleges, was an option, and not a sale. That memorandum he exhibits with his answer, and avers that it was made at a later hour in the day than the writing claimed by plaintiff to be their contract; that neither of them was bound by the agreement, but that it was only an option on the part of both; and that either party had a right to refuse to consummate it. The memorandum reads as follows:

In

either event complete enforcement of the legal and equitable rights of the parties will be effected by one comprehensive decree, and the defendants cannot be remitted to a court of law for the enforcement of any of their rights."

He also avers that said corporation is of recent creation, and is reputed to have large copper and gold mineral holdings in the Republic of Mexico, which it is just beginning to develop, but that it has not yet paid any dividends; that it has issued and sold all the stock that it now proposes to sell, and Memo. 8/29/10. Dr. Bartlett agrees to no more stock is now for sale by it; that its buy Morgan's Mary Mining Company stock, formance if the shareholder had refused to rights of the other party to the contract. comply with the contract; and that since If defendants accept their offer, complainthere was a part performance of the con- ants cannot afterwards retract it, and thus tract by the shareholder of which the cor- escape a decree in favor of the defendants. poration had taken advantage, the damages If, on the other hand, defendants refuse the to the shareholder caused by the failure of offer, and unsuccessfully resist specific perthe corporation to perform its part of the formance, they cannot be compelled to percontract, under the circumstances of the form, unless performance of every stipulacase, could not readily be ascertained or tion of the contract for their benefit is compensated if the shareholder was com-likewise coerced from complainants. pelled to keep his stock and sue for damages in a court of law. And in First Nat. Bank v. Corporation Securities Co. Minn. 150 N. W. 1084, it was held that a shareholder who elected to sell his stock within the time prescribed in the contract for repurchase by the corporation, and made a sufficient tender thereof, was entitled to a degree of specific performance notwithstanding the fact that the agreement before the time of election was lacking in mutuality of remedy. The court said that mutuality of remedy is not the sole test of specific enforceability, and is not always essential thereto. The court quoted with approval from the opinion in Henry L. Doherty & Co. v. Rice, 186 Fed. 213, where it was said with reference to a contract for the sale of corporate stock, which originally lacked mutuality of remedy: "The objection of want of mutuality of remedy in the sense in which equity uses those terms no longer exists. Complainants seeking specific performance offer to perform on their part, and unreservedly submit themselves to the court to decree whatever may be proper in enforcing the

But a contract for the sale of a part of the corporate stock of an amusement company in consideration of certain payments, which also provided that the amusement company should be entitled to first call upon a certain theater company-of which the purchaser owned a majority of the stock

for theatrical attractions that the latter company should produce for the period of ten years, will not be specifically enforced at the instance of the purchaser to compel a delivery of the stock, since it could not be enforced at the instance of the seller to secure a performance on the part of the theatrical company to furnish the stipulated talent to the amusement company continuously throughout the time designated, as equity will not award specific performance where the duty to be enforced is continuous and reaches over a long period of time, requiring constant supervision by the court.

3,400 shares, for $1,190, on or before and the court entertained jurisdiction and 9/15/10, if Morgan will sell at that price granted relief in both cases. McGuffin had when Bartlett gets ready to buy. Morgan agrees to sell at that price unless offered a better price.

purchasable in the market, or has no certain ascertainable value, or a money judgment against the party would be worthless because of his insolvency, or other circumstance in the case calling for specific performance as the only adequate relief."

A number of persons in and around Clarksburg, where the parties to this suit resided, owned stock in the Mary Mining Company, and it is contended that plaintiff could easily have proved the value of his stock, and consequently the amount of his In the Bumgardner v. Leavitt Case, Mrs. damage, if any he suffered. But it is shown Bumgardner had purchased stock from by the depositions of witnesses that about Leavitt in a steamboat which he was build- the time the alleged agreement was made, ing, under a contingent agreement that he and before and after that time, the stock would repurchase the stock, at cost, or, if had sold at different prices, ranging all the the boat depreciated in value, then at a way from 15 cents to 65 cents per share, fair cash value. The contingencies hap- according to the degree of faith that the pened, and she gave him notice of her elec-sellers and purchasers, respectively, haption to resell him the stock, and requested pened to have in the success of the corporahim to comply with his agreement. He de- tion's enterprise. Defendant was the ownclined and she sued for specific relief and er of 19,000 shares at the time he made obtained it. The same rule was again an- the alleged agreement with plaintiff, and he nounced in Lathrop v. Columbia Collieries says he was offered shortly thereafter 2,000 Co. 70 W. Va. 58, 73 S. E. 299. The follow-shares, at 25 cents per share, by Mr. A. J. ing authorities are also in point: Safford Simmons, of Clarksburg, who was the owner v. Barber, 74 N. J. Eq. 352, 70 Atl. 371; thereof. Northern C. R. Co. v. Walworth, 193 Pa. 207, 74 Am. St. Rep. 683, 44 Atl. 253; Manton v. Ray, 18 R. I. 672, 49 Am. St. Rep. 811, 29 Atl. 998; Palmer v. Graham, 1 Pars. Sel. Eq. Cas. 476; 36 Cyc. 560; 26 Am. & Eng. Enc. Law, 2d ed. 122.

The general rule is that for a breach of contract for the sale of personal property the parties are left to their remedy at law. But there are many exceptions to the rule. Where, because of the peculiar and exceptional value of the property, as in the case of slaves (Summers v. Bean, 13 Gratt. 404), or in case of heirlooms (26 Am. & Eng. Enc. Law, 104), or the inability to duplicate the property in the market, and the uncertainty of its value, and, therefore, uncertainty in the matter of ascertaining the amount of damages. In such cases equity will generally compel performance. St. Regis Paper Co. v. Santa Clara Lumber Co. 173 N. Y. 149, 65 N. E. 967. Stock in a corporation, not procurable in the market and having an uncertain value, comes within the exception to the general rule respecting specific performance. Inadequacy of legal remedy is the basis for equity jurisdiction to enforce performance.

The general rule also is that the remedy is a mutual one. Bumgardner v. Leavitt, supra, and 26 Am. & Eng. Enc. Law, 28. To this general rule there may also be exceptions, as, for instance, where one party is bound by a writing signed by him, and the other has not signed it and is not so bound because of the statute of frauds. But it is not necessary to inquire into the exceptions to the rule, because the present case falls within the general rule respecting mutuality of remedy. If one party has the right to enforce the contract the other has also.

This evidence proves that the stock had no certain market value. It had no rating in the stock market, and every man who had stock, and wanted to sell it, sold at such price as he was able to get. It also appears that about this time many of the stockholders, in and about Clarksburg, had lost faith in the ultimate success of the corporation's enterprise, and wanted to sell their stock. Under such conditions and circumstances, it would have been impracticable for plaintiff to prove the amount of his damages, and therefore his remedy at law was not adequate. Consequently, if he has proved his contract, ne is entitled to have it enforced.

The next question is: Has the contract of sale been proved? We think it has. Defendant admits, in his deposition, that he signed the agreement exhibited with the bill, but insists that the option which he filed with his answer, signed "H. M.," was later, on the same day, left on his desk, and that it annulled the agreement signed earlier in the day by both parties. He does not say he was present when the option was writ ten, or that it was handed to him by Morgan. He says: "My recollection does not serve me correctly as to the exact time I found it, but I found this on my desk after we had made this other contract."

We are forced to the conclusion, from this and other evidence, that defendant must be mistaken as to the time this option was written out and signed with the initials of plaintiff and left on his desk. It must have been before, and not after, the contract exhibited with the bill was written and signed by both parties. Plaintiff and defendant occupied adjoining office rooms, which communicated with each other, and they met frequently, sometimes more than once on

the same day. Plaintiff swears that they had two transactions on the 29th of August, one before noon and one after noon; that in the former they had a conversation, and agreed orally to what is stated in the option signed "H. M.;" that after their talk he wrote out the option, retaining a carbon copy, and placed it in an envelop addressed to Dr. Bartlett, and then returned to deliver it to him, and did not find him in his office, and left it on his desk; that at that time he (plaintiff) did not wish to enter into a binding contract to sell at 35 cents a share, because he hoped to get a better price, and says that, a week before that, he had been offered 50 cents a share by E. F. Goodwin, an officer in the Mary Mining Company, who lived in Clarksburg; that, after talking with defendant, he again went to Goodwin and asked him what he ought to get for his stock, and found that Goodwin or his clients were not so anxious then to buy, and he again went to defendant's office in the afternoon and told him, if he would enter into a positive agreement of sale, he would sell him the stock at 35 cents per share, and that thereupon the contract sought to be enforced was written out by defendant, and was then signed by both of them. Defendant does not deny that the paper was then turned over to plaintiff, or that he wrote it. Is it not highly improbable that experienced business men (and they both appear to be such) should make a written contract, mutually binding, and then later attempt to convert it into an option, not binding on either of them, without canceling the original agreement? It was not only wholly unbusinesslike, but the so-called option was valueless and useless. It is not even a unilateral contract; it obliIt gated neither party to do anything. makes no reference to the original contract, and therefore does not seem to have been intended as a cancelation of it. The only rational explanation to be found for the existence of the two papers, the execution of both of which is admitted by the parties, is that the so-called option was made first and the sale contract later.

This conclusion leads to a reversal of the decree. A decree will be entered here re

Evidence burden of proof fall of passenger elevator.

2. Proof by a passenger in an elevator in an office building that he was injured by its fall due to a defective bolt casts upon its owner the burden of showing that he took all the precautions to safeguard passengers which the law required him to take.

Same

sity.

test by manufacturer -neces

3. The owner of an elevator in an office

building which falls to the injury of a passenger because of the breaking of the bolt which unites the cables to the car has the burden of showing that the manufacturer made a test of the tensile strength of the bolt if that would have disclosed its weakness, or if the apparatus had been used so long that the manufacturer's neg. ligence might not have been the cause of the accident, he must show that he examined and tested the parts to ascertain whether or not they had been weakened by use. Elevator liability for manufacturer's negligence.

4. The owner of an elevator in an office building is liable for injuries to passengers because of the negligence of the manufacturer of the apparatus in using an unsafe bolt to unite the cables to the car. Judge judge.

prejudice

calling other

5. There is no error in one of several judges of a trial court having co-ordinate jurisdiction calling in another judge to try a case after an allidavit of prejudice had been filed against himself, although the affidavit was not filed within the time specified by statute.

*Generally as to liability for injury to an elevator passenger, see notes in 25 L.R.A. 33, and 2 L.R.A. (N.S.) 744.

to passenger by latent defect in car.

quiring defendant to pay to plaintiff the Note.-Liability of a carrier for injury sum of $1,190, with interest thereon from the 15th day of September, 1910, and that he be then entitled to the 3,400 shares of stock, and that he pay plaintiff his costs, both in this court, and in the court below. Reversed, and decree entered here.

Lynch, J., absent.

The earlier cases on this question are discussed in the note to Morgan v. Chesapeake & O. R. Co. 15 L.R.A. (N.S.) 790.

When a passenger is injured because of a latent defect in a car of the carrier, his right to recover for such injuries may be based either upon the negligence of the carrier or upon the theory that the carrier,