Appeal, No. 173, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1946, No. 215, in case of Bennett Martin v. Samuel R. Wilson. Judgment reversed; reargument refused November 28, 1952.
John A. Metz, Jr., with him Metz & Metz and Baldrige & Silhol, for appellant.
William Kaufman, with him Roland A. McCrady and McCrady & Nicklas, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
This case turns largely on a question of pleading under the new rules of civil procedure.
Plaintiff alleged in his statement of claim that defendant was the owner of 240 shares of an outstanding issue of 250 shares of the common stock of the Cooke-Wilson Electric Supply Company, a Pennsylvania corporation; that on October 1, 1945 he offered to sell those shares to plaintiff for $372 per share, or a total sum of $89,280; that plaintiff orally accepted this offer, paid defendant $2,000 on account, and arranged for payment of the balance and transfer of the stock for the following day, October 2; that he was prepared with the necessary funds at that time to make settlement but defendant refused delivery of the shares, and, on the contrary, sold them on that very day to other persons for $100,000. Accordingly, plaintiff claimed damages for breach of contract. Defendant, in his answer, denied all these allegations, and, in "New Matter", averred that he owned only 140 shares of the stock; that he had agreed in writing to sell to plaintiff 14 of the shares for $372 per share; that plaintiff gave defendant a check in the sum of $2,000 but the check was not good; that a new check was given defendant but he refused to accept it, returned it to plaintiff, and informed him that his offer was withdrawn, and it was then and there agreed by the parties "that the deal was off and the incident closed." Plaintiff filed an answer to the "New Matter" in which he alleged that defendant's agreement for the sale of 14 shares was not the only writing executed by him but that there were other writings which were agreed upon by the parties as "part of the machinery" for the carrying out of the oral agreement; he stated also that the check which he had given defendant was good. Defendant, replying to plaintiff's answer, averred that there were no writings for the sale of any stock other than the one for the sale of the 14 shares.
Plaintiff had been in the employ of the Cooke-Wilson Electric Supply Company for a long period of time.
He owned ten shares of its stock which, with the 240 shares alleged to have been owned by defendant, constituted all the outstanding shares. Defendant had been president of the company for several years. Plaintiff testified that defendant, desiring to terminate his connection with the company because he wished to live in California, agreed, in September, 1945, to sell his stock to plaintiff. Plaintiff thereupon, according to his testimony at the trial, made arrangements to enable him to finance the purchase. He stated that he had enough funds of his own to pay for 14 shares, that he borrowed the amount necessary to pay for 14 more from a friend, one J. C. Cohen, and that he negotiated a loan with the Manufacturers' Trading Corporation in Cleveland in an amount sufficient to pay for 212 shares, the lender stipulating that those shares should be transferred to the Cooke-Wilson Electric Supply Company to be held by it as treasury stock until the loan was paid off.*fn1 Plaintiff claimed that he explained this to defendant and arranged with him that defendant would sign three writings, one agreeing to sell 212 shares to the Cooke-Wilson Electric Supply Company (this in order to meet the condition imposed by the lending ...