
    Stewart and Johnson v. Herron, Administrator, et al.
    
      Contract for sale of corporation stock — Does not lack mutuality, when — Vendor to retain possession till certain dividends accrue— No time stipulated for payment — Payment to be made in reasonable time — Implied agreement.
    
    J. R. S. entered into a written agreement with S., J. and G., whereby he agreed to sell, and they agreed to buy in equal proportions, three hundred and sixty shares of corporate stock on certain terms and conditions which were in part: 1. “The purchase price of said stock shall be its par value of one hundred dollars ($100.00) per share.” 2. “Said stock shall remain in the name of said J. R. Stewart, until it is fully paid for as herein provided,” etc. 3. “All dividends declared on said stock shall be paid to said J. R. Stewart, until it is paid in full. Enough of said dividends shall be retained by him to make four per cent, on the balance of said purchase price unpaid at the time said dividends are respectively declared, and the balance thereof applied by him on said purchase price; and as soon as said stock is fully paid for, either through dividends or otherwise, it shall be delivered to said purchasers. In case the dividend declared any year shall be less than four per cent, no interest shall run on said purchase price in excess of the dividend declared, and if none be declared there shall be no interest.” 4. “Should said purchasers desire to make payments on said purchase price in addition to the dividends from time to time declared on said stock, they shall have the option of doing so.” There was no express promise by the purchasers, to pay for said stock, and no time named in the contract itself within which it was to be performed. Held; The contract is not wanting in mutuality or consideration. No time of payment being fixed by said contract, the law implies- — from their agreement to purchase — a promise and engagement on the part of the purchasers to pay, through dividends or otherwise, within a reasonable time.
    (No. 10483
    Decided November 19, 1907.)
    Error to the Circuit Court of Hamilton County.
    The defendant in error, John W. Herron, as administrator of the estate of Jacob R. Stewart, deceased, filed his petition in the probate court of Hamilton County, Ohio, asking the direction and instruction of. said court as to the disposition proper to be made by him of three hundred and sixty shares, of the par value of one hundred dollars each, of the capital stock of The Bradford Machine Tool Company, a controversy having theretofore arisen between plaintiffs in error and certain of the next of kin of Jacob R. Stewart, deceased, as to who was the legal owner of said stock. To this proceeding instituted by the administrator, all persons in interest, including The Bradford Machine Tool Company, were made parties defendant, and entered their appearance therein. The plaintiffs in error, George F. Stewart and W. T. S. Johnson, filed their answer and cross-petition, asserting a claim to said three hundred and sixty shares of stock under and by virtue of the following written contract made with decedent, Jacob R. Stewart, in his lifetime:
    “J- R. Stewart agrees to sell 360 shares of the capital stock of The Bradford Mill Company to W. T. S. Johnson, George F. Stewart and Lewis N. Gatch, and said W. T. S. Johnson, George F. Stewart and Lewis N. Gatch agree to buy the same in equal proportions, on the following terms and conditions, viz.:
    “1st. The purchase price of said stock shall be its par value of one hundrel dollars ($100.00) per share.
    “2d. Said stock shall remain in the name of said J. R. Stewart until it is fully paid for as herein provided. During the time it stands in his name he shall retain full power to vote the sariie; provided, however, that if said purchasers unite in requesting that it be voted in any particular way, it shall be voted in accordance with their unanimous request; and provided, also, that in case of his ceasing to take an active part in the business, said stock thereafter, until it is delivered to said purchasers, shall be voted in accordance with the request of any two of them.
    “3d. All dividends declared on said stock shall be paid Jo said J. R. Stewart, until it is paid in full. Enough of said dividends shall be retained by him to make four per cent, on the balance of said purchase' price unpaid at the time said dividends are respectively declared, and the balance thereof applied by him on said purchase price; and as soon as said stock is fully paid for, either through dividends or otherwise, it shall be delivered to said purchasers. In case the dividend declared any year shall be less than four per cent., no interest shall run on said purchase price in excess of the dividend declared; and if none be declared, there shall be no interest.
    “4th. Should said purchasers desire to make payments on said purchase price, in addition to the dividends from time to time declared on said stock, they shall have the option of doing so.
    “Item 5. Said W. T. S. Johnson and George F. Stewart severally agree to remain in the employ of said The Bradford Mill Company until each has paid his respective share of said purchase price, and in case either one of them withdraws from that employment before that time, excepting in the case of his death, he shall be entitled in severalty to so much of his portion of said stock as has been theretofore paid for, and to a sixty-day option on the balance of said portion at par, with six months time in which to pay for it; and this contract shall be terminated as to him, but it shall continue pro rata as to the other parties.
    “In case either of said purchasers shall die during the continuance of this contract, the remaining two may acquire his. interest in said contract, and in the stock covered by it, by paying to his estate an amount equivalent to that theretofore credited on his portion of said purchase price, and this contract shall continue on that basis. If they decline to do this, said J. R. Stewart shall pay that amount to said estate in cash. In either event, this contract as to said decedent shall be terminated, but it shall continue pro rata' as to the other parties.
    “6th. The provisions of this contract as to dividends shall not apply to any dividend that may be declared at the close of the current fiscal year of said company; but said dividend shall be carried to the account of said J. R. Stewart, and no part thereof applied to the payment of said purchase price.
    “Executed in quadruplicate this 23d day of September, 1899.
    “(Signed)
    “J. R. Stewart,
    “W. T. S. Johnson,
    “George F. Stewart,
    “Lewis N. Gatch.”
    By appropriate pleadings the validity of this contract was challenged and denied by Carrie E. Stewart, widow of Jacob R. Stewart, and by Gertrude Stewart Titus and Mary L. Hazelton, his children and heirs-at-law.
    On February 10, 1900, The Bradford Mill Company was reorganized under the name of The Bradford Machine Tool Company. There was no change in the issue or distribution of stock, or in the officers or directors of the company, except that said Lewis N. Gatch was elected vice-president thereof. On the date last above named the original contract was modified or amended, by agreement of all the parties thereto, and the following endorsement was made thereon:
    “It is hereby agreed by the parties hereto that this contract in all its terms and conditions shall apply to 360 shares of stock of The Bradford Machine Tool Co., instead and in lieu of the said 360 shares of stock of The Bradford Mill Co., and that on this agreement said J. R. Stewart may surrender for cancellation said stock of The Bradford Mill Co., upon the issuance to him of the same amount of stock of The Bradford Machine Tool Co., which he agrees to hold subject to the terms of this contract and to the rights of the parties thereto in place of said surrendered stock. This agreement is made in order that the plan may be consummated by winding up the affairs of the Bradford Mill Co., by the surrender of its stock by its stockholders and the transfer of its assets to The Bradford Machine Tool Co., upon the issuance to said stockholders respectively of amounts of stock of The Bradford Machine Tool Co., equal to those of The Bradford Mill Co., surrendered by them.
    “Cincinnati, Ohio, Feb. 10, 1900.
    “J. R. Stewart,
    “George F. Stewart,
    “W. T. S. Johnson,
    “Lewis N. Gatch.”
    .In 1901 the office of vice-president was abolished, and Gatch ceased to be an officer, though he remained a director in the company. On February 11, 1902, the following writing was executed by the distributees of the estate of J. R. Stewart, deceased:
    “We consent and agree that Lewis N. Gatch may assign to George F. Stewart and W. T. S. Johnson, his interest in the contract of'September 23, 1899, relating to 360 shares of Bradford Machine Tool Co. stock, leaving the contract in full force as at present excepting that Stewart and Johnson shall have all the rights and be subject to all the obligations that are now in Stewart, Johnson and Gatch.”
    
      This writing was signed and delivered, with notice to Johnson and Stewart that such signing and delivery should be without prejudice to the rights of the widow and daughters.
    On February 27, 1902, the administrator filed his application herein for instructions in the premises, and on March 3, 1902, an order issued upon said application authorizing the administrator to act in accordance with the above writing of February 11, 1902. Accordingly, on that date the administrator endorsed upon said contract the following :
    “Cincinnati, Ohio, March 3, '1902. In accordance with an order of the Probate Court of Hamilton County, Ohio, this day made in the matter of the estate of Jacob R. Stewart, deceased, No. 49142 of said court, I hereby released the above named Lewis N. Gatch from any further obligation to said estate by reason of the within contract.
    “John W. Herron,'
    “Admr., T. R. Stewart,”
    At the same time W. T. S. Johnson, George F. Stewart and Lewis N. Gatch endorsed upon said contract the following:
    “In consideration of one dollar and the mutual agreements of the undersigned, Lewis N. Gatch does hereby assign, without recourse, to W. T. S. Johnson and George F. Stewart all his right, title and interest in and to the within contract and the 360 shares of stock of The Bradford Machine Tool Company to which it relates. Said Johnson and Stewart hereby accept said assignment and assume any obligation which may have been imposed upon said Gatch by said contract. The above is done upon the written consent (dated Feb. 11, 1902), of Carrie E. Stewart, widow of the within named J. R. Stewart; George F. Stewart, Gertrude Titus and Mary Hazelton, his children, and John W. Herron, administrator of his estate.
    “Done at Cincinnati, Ohio, this 3d day of March, 1902.
    “Lewis N. Gatch,
    “George F. Stewart,
    “W. T. S. Johnson.”
    In the probate court the cause was heard and submitted upon an agreed statement of facts which is fully set out in the record. Upon this hearing the probate court found and adjudged that the original contract made and entered into between Jacob R. Stewart and George F. Stewart, W. T. S. Johnson and Lewis N. Gatch, because of uncertainty and indefiniteness as to the time of its performance, was voidable by the administrator; and instructed him that he had full right to terminate the same, but the court allowed to said George F. Stewart and W. T. S. Johnson so much of said stock as had been paid for by them; and gave them a sixty day option on the balance, at par, with six months time in which to pay for the same, after the exercise of such option. Upon an appeal , to the court of common pleas, in which all the parties united, the court held that the contract, as modified by the writing of February To, 1900, was a good and valid contract of mutual obligation, by the terms of which Jacob R. Stewart agreed to sell, and George F. Stewart, W. T. S. Johnson and Lewis N. Gatch agreed to buy and pay for it at its par value in money, 360 shares of the capital stock of The Bradford Machine Tool Company. From this judgment the administrator and the objecting distributees of the estate of Jacob R. Stewart, prosecuted error to the circuit court, where the judgment of the court of common pleas was modified. The circuit court affirmed as to two.-thirds of the number of shares of stock in question, reversed as to the one-third, and entered judgment accordingly. Again, none of the parties were satisfied with this judgment, and in consequence all are now seeking relief therefrom in this court. The plaintiffs in error are here, asking that the judgment of the court of common pleas, holding the contract valid, be reinstated and affirmed without modification. The defendants in error, by cross-petition, ask that said contract be declared wholly void.
    
      Messrs. Maxwell & Ramsey for plaintiffs in error.
    It is said that the third and fourth clause of the writing deprive the seller of his right to enforce payment from any source except future dividends on the stock itself; that they extinguish the previously expressed personal obligation of the purchasers and make the whole transaction unilateral and illusory. It will be well to approach this branch of the argument by the consideration of a few elementary rules governing the construction of contracts.
    First. In case of doubt, that construction must be adopted which supports the agreement of the parties. 1 Beach, Modern Law of Contracts, Section 73; Greenough et al. v. Smead et al., 3 Ohio St., 416; Lewis v. Tipton, 10 Ohio St., 88.
    Second. The contract must not only be sustained as a whole, but in all of its parts, except where irreconcilable parts coexist. Insurance Co. v. Housinger & Norton, 10 Ohio St., 10; Brown et al. v. Fowler et al., 65 Ohio St., 509.
    Third. As mutuality is essential to the validity of an executory contract, the law presumes intent to create mutual obligation except in cases where the expressed agreement will not admit of that interpretation. Nowlin v. Pyne, 40 Ia., 166; Furnace Co. v. Magill, 108 Ill., 656.
    Why go through the useless formality of giving and receiving a,written paper which was not after all, to evidence any right or create any obligation? Lewis v. Tipton, 10 Ohio St., 89; Manufacturing Co. v. Coon, 150 Mass., 566; Lewis v. Insurance Co., 61 Mo., 534; Mill Co. v. Goodnow, 42 N. W. Rep., 356; McCartney v. Glassford, 20 Pac. Rep., 423; Nunez v. Dautel, 19 Wall., 560; Cota v. Buck, 7 Metc., 588; Gardner v. Barger, 14 Heisk., 668; Palmer v. Hummer, 10 Kan., 464; Jones v. Eisler, Admr., 3 Kan., 134.
    In all contracts where no time is specified for the doing of an act, it is to be inferred that it is to be done in a reasonable time. Scott v. Lord Ebury et al., L. R., 2 C. P., 225.
    The condition subsequent, or option, does not create the term of the contract. Brown et al. v. Fowler et al., 65 Ohio St., 507; Turnpike Co. v. Coy, 13 Ohio St., 84; Furnace Co. v. Railroad Co., 
      22 Ohio St., 451; Storm v. United States, 94 U. S., 83; Harvester Co. v. Mitchell, Lewis & Staver Co., 89 Fed. Rep., 173; Brown et al. v. Bowman, 119 Ga., 153; Construction Co. v. Iron Works, 69 S. W. Rep., 384; Publishing & Engraving Co. v. Walker, 87 Mo. App., 503; Sagalowitz v. Pellman, 32 Misc., 508; Boyd et al. v. Brown, 34 S. E. Rep., 907; Willetts et al. v. Insurance Co., 45 N. Y., 45; Train v. Gold, 5 Pick., 380; Water Co. v. Lumber Co., 85 Ia., 112; Emerson et al. v. Packing Co., 104 N. W. Rep., 573.
    
      Mr. W. C. PI err on, for Herron, administrator, and Mr. lohn W. Warrington, for defendants in error.
    We contend that the employment and death clauses provide for the discharge of the contract, as well with respect to the member withdrawing from the employment as to the member dying, and that the contract is not broken in one instance any more than in the other. Clark on Contracts, 626.
    The plaintiff in error insists that the obligation contained in the purchase and sale clause can not be qualified by the method of payment expressly provided; his theory being that the employment feature and the purchase and sale feature are clear and can not be consistently affected by the withdrawal feature in the one instance or by the method of payment clause in the other. We contend, however, that he overlooks the rule of construction prevailing in this court, that, it is only where one clause is clearly expressed and another is not, that the first shall be given effect. Brown et al. v. Fowler et al., 65 Ohio St., 507.
    There is an unknown quantity in counsel’s interpretation, which is fatal. It is found in his requirement to pay not before “the expiration of a reasonable time for realizing the amount out of the dividends.” What tribunal, court, or jury, could solve the question of such “reasonable time” ? It would depend upon the annual amount and regularity of dividends realized in future years. It is obvious that dividends would be greater with the concern in properous times than in hard times.
    The most that can be said is that the contingencies and hazards of the corporate business must-control the only claim of obligation to pay; that is, according as dividends may or may not accrue. Chitty on Contracts, 89; Benjamin on Contracts, 17; Clark v. Pearson, 53 Ill. App., 310.
    It would be optional with plaintiffs in error, upon the theory of their counsel and in fact, to control amounts of dividends in good times, while it might be without their power to produce dividends and so furnish them an excuse for not doing so, in hard times. Such a promise is “illusory,” and being “dependent on a condition which in fact reserves an unlimited option to the promisor is not enforceable.” Hammon on Contracts, 89.
    Where a contract is so far incomplete that the period of its intended duration can not be determined by a fair inference from its provisions, either party is ordinarily at liberty to terminate it at will on giving reasonable notice of .his intention to do so. Irish v. Dean, 39 Wis., 562; Coffin v. Landis, 
      46 Pa. St., 426; Mechem on Agency, Section 210; Logging Co. v. Robson, 69 Fed. Rep., 773.
    The absence then of any provision expressly requiring' the administrator of the elder Stewart to carry out the provisions of term five of the contract is significant. It is hard to believe that if the survivor of the younger Stewart or Johnson should fail to pay the estate of the one dying to the extent of past dividends accruing on his stock, it was ever intended that the administrator of the elder Stewart should pay such sum out of the estate. It is quite conceivable that such contingency might arise; but it is not conceivable that the parties ever intended that the elder Stewart’s estate should be kept open for administration during a period so uncertain and indefinite.
    This contract is so personal in its nature as not to be binding upon the legal representatives of any of the parties to it. It is like a contract of partnership, or principal and agent, and terminates at the death of either party.
    Without quoting at length, we refer to the following authorities as establishing this general proposition: Harriman -on Contracts, 2d Ed., Section 277; Rockel Ohio Probate Law, Par. 520; Williams on Executors, 3d Ed., p. 457, Sections 367, 368; Dickinson v. Callahan’s Adrnr., 5 B. Monroe (Ky.), 497; Farrow v. Wilson Law Reports, 4 Common Pleas, 745.
   Crew, J.

The rights of the respective claimants to the 360 shares of stock involved in the present controversy must, as is apparent from the above statement of facts, be ascertained and determined from a consideration of whether or not the agreement of September 23, 1899, was, and is, a valid contract of mutual obligation binding upon all the parties thereto. It is claimed by defendant in error that this agreement is void and of no effect because, as they insist, it is wholly uncertain and illusory in its nature, and is without mutuality or consideration. Referring to the writing itself we find in the initial paragraph thereof this language: “J.' R. Stewart agrees to sell 360 shares of the capital stock of The Bradford Mill Company to W. T. S. Johnson, George F. Stewart and Lewis N. Gatch, and said W. T. S. Johnson, George F. Stewart and Lewis N. Gatch agree to buy the same in equal proportions, on the following terms and conditions, viz.: — ” Here we have, pertinently and plainly expressed, mutual and concurrent engagements, equally obligatory upon the respective promisors; upon the one to sell, and upon the others to purchase, the 360 shares of stock upon such terms as are in said instrument expressed, and such as are necessarily implied therefrom. It is then further in said writing stipulated and agreed that: “The purchase price of said stock shall be' its par value of one hundred dollars ($100.00) per share.” Thus we find in the language and terms of ■ the instrument itself, absolute certainty as to parties, subject-matter and consideration — every element necessary to a complete and valid contract of purchase and sale; and if the foregoing were the only provisions of said instrument it could not be doubted, but that the contract as thus expressed, would be one of binding obligation upon all the parties thereto. But we are told by counsel for defendants in error, that by force of the provisions of the third clause of said instrument, the vendor, J. R. Stewart, is wholly deprived of the right to demand or exact payment for said 360 shares of stock from the purchasers thereof, in any manner other than by application to the purchase price of future dividends on the stock itself; and that the effect of this is to destroy and extinguish any previously expressed personal obligation on the part of said purchasers, and to convert what would otherwise be a valid contract of mutual and binding obligation into a mere unilateral agreement without consideration. The language of this clause is as follows: “3d. All dividends declared on said stock shall be paid to said J. R. Stewart, until it is paid in full. Enough of said dividends shall be retained by him to make four per cent, on the balance of said purchase price unpaid at the time said dividends are respectively declared, and the balance thereof applied by him on said purchase price; and as soon as said stock is fully paid fory either through dividends or otherwise, it shall be delivered to said purchasers. In case the dividend declared any year shall be less'than four per cent, no interest shall run on said purchase price in excess of the dividend declared, and if none be declared there shall be no interest.” It will be observed that the language of the clause is not, that payment of the purchase price shall be made, or may be exacted, only- out of dividends declared, but that: “All dividends declared on said stock shall be paid to said J. R. Stewart until it (the purchase price) is paid in full.” In other words, the mode of payment prescribed is not exclusively from dividends on the stock itself, neither is payment conditioned wholly, or finally, upon the alternative that dividends shall be declared, but the only requirement is that all dividends declared shall be applied in payment of the purchase price. This stipulation or requirement is in no wise necessarily inconsistent with, nor does it in any manner impair, avoid or extinguish, the obligation theretofore imposed upon* the purchasers by their express words of formal agreement to purchase. “That which is made certain in one part of a written instrument, can not be overcome or changed by words in another part, unless such other words are of equal or greater certainty.” Brown et al. v. Fowler et al., 65 Ohio St., 509.

In The Ashland Mutual Fire Insurance Co. v. Housinger & Norton, 10 Ohio St., 10, this court had under consideration and review a policy of fire insurance, one clause of which provided for the payment of all losses or damages not exceeding the sum insured. There was a subsequent clause in said policy which the company claimed limited its obligation to two-thirds of the loss actually sustained. In construing said policy, this court said: “In the first sentence or provision the company undertakes, unconditionally, to pay all losses or damages not exceeding the sum insured; and the only way of avoiding its obligation is to show that the promise thus clearly and unconditionally expressed is retracted or varied in the succeeding sentence. But it is a rule to so construe an instrument, if practicable, that the whole may stand; ut res magis valeat, quam pereat.

“Nothing but a clear and unambiguous expression in the latter sentence, amounting to a necessity for it, could justify our regarding the subsequent provision in a contract as utterly inconsistent with the preceding provision.”

But it is said, that by the provisions of the fourth clause of said instrument, the parties have themselves clearly evinced their understanding' and intent, that the dividends on the stock should be the only method of payment that could be exacted, and that the plain purpose of this clause was, and is, to exempt the purchasers from any liability to pay out of their own money or means, except upon their “desire” or “option” so to do. The clause reads as follows: “Should said purchasers desire to make payments on said purchase price in addition to the dividends from time to time declared on said stock, they shall have the option of doing so.” While it is obviously true, that the option thus extended to make payments from time to time in addition to the dividends declared, neither creates nor imposes an obligation upon the purchasers to make such additional payments; yet it is equally true, that the giving of the option does not operate to discharge and release the purchasers from such obligation and liability as they assumed under and by virtue of their express agreement to purchase the 360 shares of stock, which J. R. Stewart, in terms, concurrently promised and agreed to sell them.

Among the considerations recognized in law as sufficient to support a contract, is that of mutual promises, or as it is sometimes expressed, a promise for a promise. In our everyday business relations, many of our most familiar and common contracts depend for their validity upon the application of this principle. And the doctrine is very generally, if not universally, recognized that where there is mutuality of engagement so that each party has the right at once to hold the other to a positive agreement, a sufficient consideration is provided and the contract is binding upon each. What, then, considering all its terms and provisions, is the proper construction and legal effect, of this writing of September 23d, 1899, modified by the endorsement of February 10th, 1900? It is claimed that inasmuch as this writing contains neither express engagement to pay the purchase price of $36,000, nor fixes definitely the time within which the agreement shall be performed and said purchase price be fully paid, that therefore it is wholly uncertain and illusory in its nature, and should not be enforced. As to the first of these propositions it is enough to say, that the agreement of George T. Stewart, W. T. S. Johnson and Lewis N. Gatch to purchase the 360 shares of stock of The Bradford Mill Company, necessarily implies a promise on their part to pay for it. Railroad Co. v. Brown, 26 Ohio . St., 223. As to the suggestion that time of performance is not therein specified, the rule is well settled, that where no time for performance is fixed by the contract itself, the law implies that performance is to take place within a reasonable time, and that the parties so intended and agreed. Lewis v. Tipton, 10 Ohio St., 88; Curtiss v. The City of Waterloo, 38 Ia., 266; Griffin v. Ogletree, 114 Ala., 343; Wright v. Maxwell, 9 Ind., 192. The written agreement here in question definitely fixes the amount to be paid, and refers to it throughout as the “purchase price.” Immediately upon the execution of this writing the purchasers were entitled to receive, and did receive, the full beneficial interest in the 360 shares of stock, and the same were thereafter voted in accordance with their wishes and directions; and the dividends thereon amounting to several thousand dollars, were applied as a credit on the purchase price of said stock. We must presume that the parties thereto intended this instrument to have some operation, and it would seem but reasonable that, if as claimed, only a gift of the stock was intended, that then naturally and necessarily, the instrument and transaction would have assumed a very different form. To adopt the construction contended for by the defendants in error would be to import into .the written contract of the parties a condition nowhere found or expressed in the instrument itself, viz.: that if dividends fail, payment of the purchase price would not be exacted — and to thus, by judicial construction, render the instrument frivolous and ineffectual, and defeat rather than sustain it. But the rule is elementary, that if the language of a contract is susceptible of two constructions, one of which will render it valid and give effect to the obligation of the parties, and the other will render it invalid and ineffectual, the former construction must be adopted. Applying the foregoing principles and rules of construction to the contract now under review,necessarily leads to the conclusion that this contract is not wanting either in consideration or mutuality of obligation, and that it .is therefore binding and obligatory upon the parties, and imposes upon the purchasers the obligation to pay the full purchase price of $36,000, “through dividends or otherwise,” but in terms allows them a reasonable time within which to realize this amount from dividends' that may be declared. The following authorities, with more or less direction, bear upon the propositions above considered. Lewis v. Tipton, 10 Ohio St., 88; Railroad Co. v. Brown, 26 Ohio St., 223; Palmer v. Hummer, 10 Kan., 464; Fisher v. Hopkins, 4 Wyo., 379; Carter White Lead Co. v. Kinlin, 47 Neb., 409, 416; Minneapolis Mill Co. v. Goodnow, 40 Minn., 497; Scott v. Lord Ebury, 2 L. R. C. P., 255; Aunez v. Dautel, 19 Wall., 560; Brown v. Rounsavell, 78 Ill., 589 McCartney et al. v. Glassford, 1 Wash., 579; DeRutte et al. v. Muldrow et al., 16 Cal., 505.

In view of the conclusion above reached, it is unnecessary to consider whether the fifth clause of said contract provides a valuable and sufficient consideration, independent of the purchase price agreed to be paid, or the effect, if any, on the rights of the parties, of alleged part performance by the purchasers, in the lifetime of said Jacob R. Stewart.

The further claim is made in this case by counsel for defendants in error, that said contract, if mutually binding upon the parties thereto, is nevertheless wholly incapable of performance by the administrator. We are of opinion, however, that as performance on his part would only require of the administrator that he receive and credit upon said contract the amounts paid, upon the purchase price, through dividends or otherwise, and when fully paid that he transfer and deliver said stock to the persons entitled thereto, that no legal obstacle exists to prevent his full and completé performance of said contract in the due course of administration.

The judgment of the circuit court will be reversed, and the judgment of the court of common pleas will be affirmed.

Shauck, C. J., Price, Summers and Davis, JJ-, concur. .  