that he had been ready, able, anxious and willing, at all times since the execution and delivery of the writing to him, upon receipt of the title papers to assist in showing the condition of the title thereto and to have the land surveyed, and to perform all the obligations imposed upon him by the contract; and that, by reason of the failure of the said W. M. Cornett and his wife to furnish him their title papers, he had been delayed in discharging the obligations which the contract imposed upon him. He asked that the contract be carried out according to its terms. He further pleaded that, since the execution of the contract W. M. Cornett and his wife had conveyed, or attempted to convey, the land which they had sold to him to the Ford Lumber & Manufacturing Company, and asked that said company be made a party defendant, which was done.

In a reply plaintiffs traversed the affirmative matter set out in the original answer and counterclaim. Proof was taken, and the case submitted upon the pleadings and proof. The court was of opinion that plaintiff was entitled to the relief sought and so adjudged. The defendant appeals.

A construction of the writing is necessarily involved in a determination of the rights of the parties to this litigation. It is insisted by appellees that it is merely an option, by which appellant was given the right to buy the land at the price named therein, at any time prior to December 1, 1907, and that, not having exercised such right within the time prescribed, any rights which he had thereunder were lost to him. On the other hand, appellant insists that this is an absolute contract of purchase and sale, that he paid, on the day it was executed, $200 of the purchase money, and that his failure to cause the land to be surveyed and the acreage ascertained within the time prescribed, to-wit: prior to December 1, 1907, was due alone to the fact that appellees did not furnish him with their title papers or assist him in ascertaining that they had title to the land which they had sold and agreed to convey.

Looking to the writing itself which, in the absence of any charge of fraud or mistake in its execution, must be accepted as expressing the contract between the parties, we find that it has all the essentials of a contract of bargain and sale of real estate. It says, "We,Wm. M. Cornett and Lina Cornett, his wife, hereby sell to John E. Golden, for the sum of $10 per acre the land herein de

scribed and we agree to convey said land and the fee simple title thereto to him by deed of general warranty and free from any lien, defect or incumbrance." The language used in this first clause of the contract is plain, clear, unambiguous and certain. The only construction of which this language is susceptible is that the grantors have sold their land to the grantee for $10 per acre and have agreed to make him good and sufficient deed thereto. The sale having been made and the terms agreed upon, the contract then provides for the doing of certain things in order to satisfy the purchaser, Golden, that Cornett and wife owned the title to the lands with which they were dealing and to ascertain the exact number of acres. The contract provides that Cornett and wife should deliver to Golden their title papers for the lands and assist him in abstracting and showing the condition of the title, and when the title should be shown to be perfect in the grantors, the acreage was to be ascertained by a surveyor, and following this, the deed should be executed and delivered, and the land paid for and possession given to the purchaser.

All acts to be done or performed by either party were necessary to establish two propositions, first, that the grantors owned the title to the lands which they, by this writing, agreed to convey, and second, to ascertain the exact number of acres in the tract. None of these stipulations throws any light upon the question as to whether or not it was an option or a contract of sale into which the parties entered. They are aids, as it were, to the parties in carrying the contract into execution. From an examination of the contract as a whole, it is apparent that the parties did not at that time regard it as an option but as a contract of bargain and sale of the land. Indeed, the language, when fairly construed. is not susceptible of any other interpretation.

The only remaining question is, has the conduct of the parties to this contract, since its execution, been such as to warrant the court in holding that there was a mutual abandonment of the contract? Executed in 1907, no steps were taken by either party for more than two years, although each knew that by the terms of the contract the validity of appellees' title was to be established and the acreage ascertained before December 1, 1907. Appellees offer no excuse whatever for their failure and refusal to deliver to appellant their title papers or to assist him in abstracting their title, although appellant al

leges that sometime after December 1, 1907, he called upon or notified appellees to deliver their title papers to a certain bank in order that they might be used in abstracting the title. Appellees disregarded this notice and at no time furnished, or offered to furnish, appellant with the evidences of their title to said property, nor did they do anything looking toward aiding him in establishing their title; but, with $200 of appellant's money in their possession, they contented themselves with letting the matter stand and now seek to have the contract of sale, into which they entered, declared null and void and of no binding force or effect, although they admit that, since its execution, they at no time complied or offered to comply with the provisions which the contract, in plain terms, imposed upon them. Are they in a position to do so? May they shelter behind the inaction of appellant and seek to be benefitted because thereof, while while they themselves were in default?

While the obligations imposed by the contract were mutual and reciprocal, they required that appellees should take the initiative. It was incumbent upon them to deliver their title paper to appellant before he was required to do anything. While their failure to deliver their title papers to him or to assist him in any wise in tracing their title might not altogether excuse appellant from attempting to comply with his part of the contract, it certainly stands in the way of appellees in attempting to procure the relief here sought. They are seeking to be relieved from the burden of a contract which they say casts a cloud upon their titles, and at the same time are confessedly in default in the performance of duties which the contract imposed upon them.

In 39 Cyc., 1353, the author states that the acts of parties to a contract, in order to constitute its abandonment, "must be positive, unequivocal, and inconsistent with the continuance of the contract." Measured by this standard, it is apparent that the contract under consideration was not abandoned, for neither party, during the interim between the making of the contract and the date upon which appellees instituted their suit, did or said anything inconsistent with the obligations of the contract, and the intervening time was not so great as to warrant the court in holding that their conduct amounted to an abandonment. Appellees could not have refused to carry out the contract and defeated appel

lant's rights thereunder, by a failure to furnish him with their title papers or to assist him in ascertaining that their title to said land was good. Good faith on their part required of them more than mere inaction or silence. They were, at least, bound to offer to comply with those terms which the contract imposed upon them, as a condition precedent to the survey of the land, the making of the deed, and the payment of the balance of the purchase price. To relieve themselves of liability, it was incumbent upon them to have offered to comply with their part of the contract and to satisfy appellant that the title to the land in question was good in them. Had they done so, and appellant then had refused to carry out the obligations which the contract, by its terms, imposed upon him, they might, with propriety, have applied to the chancellor for the relief which they are now seeking, but they themselves being in fault are in no position to do so.

If time had been the essence of the contract in this case, and the contract itself had provided that the land was to be surveyed and paid for before December 1, 1907, appellees would still be in no position to complain or claim a forfeiture, for the reason that, by the terms of the contract, it was incumbent upon them to furnish appellant with evidences of their title and to assist in tracing same. So, viewed from any standpoint, it is apparent that such rights as appellant had, under and by virtue of this contract, were neither forfeited nor lost to him by reason of his failure to have his title examined and the acreage ascertained within the time fixed in the contract. See notes to Boldt v. Early, 104 Am. St. Rep., 255.

Appellees having received $200 as a payment on this land at the time the contract was entered into, fair dealing on their part required of them to give notice to appellant that they were ready and willing to have their titled examined, the acreage ascertained and the contract closed. If, after such notice, appellant had taken no steps to carry out the contract, they might, with plausibility, have claimed abandonment on his part. Having failed to avail themselves of this right, they are in no position to claim either a forfeiture or an abandonment. Upon this showing, the chancellor should have denied to them the relief sought and decreed a specific performance of the contract for the land, or so much

thereof as, upon investigation, it is found appellees have title to.

Judgment reversed and cause remanded for further proceedings consistent herewith.

1.

Lebus, et al. v. Stansifer, et al.

(Decided June 17, 1913.)

Appeal from Kenton Circuit Court
(Criminal Common Law and Equity Division).

Corporations Suit by Stockholder for Himself and Other Stockholders to Correct Management of-When May Be Prosecuted.Ordinarily a stockholder may not sue upon behalf of himself and other stockholders to correct an evil in the management of a corporation until the managing board has been requested to take such action, and has refused, but where the managers or directors of the corporation bear such a relation to the matter as to show that they would not from the very nature of things listen to any request to institute an action to remedy it, a stockholder on behalf of himself and other stockholders, who are similarly situated, may proceed to prosecute the suit without making any such demand upon the managing authorities of the corporation. 2. Corporations-Suit by Stockholder for Himself and Other Stockholders to Correct Management-When May be Permitted to Sue for Themselves and Others-Pleading.-Where a district board of a burley tobacco society was not conducting the affairs of the corporation in such manner as to satisfy numerous of its stockholders in the matter of carrying out the terms of a pooling contract, in an action by two of the stockholders of the society for relief from the alleged mismanagement, the allegation being that there are something like 40,000 poolers, who in all respects are similarly situated as appellants, it was not improper for the plaintiffs to be permitted to sue not only for themselves, but for all the poolers.

3.

Corporations-Section 551, Kentucky Statutes-Intent to Prevent Incorporators from Getting Control Contrary to Wishes of Majority of Stockholders.-In enacting section 551 of the Kentucky Statutes, the Legislature had in view the idea of preventing the incorporators from getting initial control of corporations at the inception of their organization contrary to the wishes of a majority of the stockholders. Under the provisions of this section, it is not within the power of the incorporators to designate in the articles of incorporation an initial board of directors without any action upon the part of the stockholders.

4. Corporations-Placing of Stockholder's Shares in Voting Trust Without His Consent-Right of One to Control His Own Prop