
    B. C. WAY and B. P. WAY v. CARTERET ICE, TRANSPORTATION AND STORAGE COMPANY and MOREHEAD CITY SEA FOOD COMPANY.
    (Filed 10 October, 1923.)
    Evidence — Instructions—Appeal and Error.
    Tbis action presents the issue as to whether the plaintiffs were entitled to take cash for their stock in the defendant corporation absorbed by its co-defendant, under offer to sell by the one and acceptance by the other by respective resolutions of each, in evidence and undisputed, giving the plaintiffs this option, with further evidence that the plaintiffs had elected to take cash for their shares of stock so absorbed: Melé, the plaintiffs’ testimony that they had elected to take the cash was material and relevant to the issue, and properly admitted in evidence; and, their being no conflicting evidence as to their right to make this selection, an instruction to that effect was not erroneous.
    Civil actioN, tried before Grady, J., and a jury, at January Term, 1923, of Carteret. Appeal by defendants.
    
      Charles L. Abernathy and C. R. Wheatley for plaintiffs.
    
    
      Julius F. Duncan, for defendants.
    
   ClaeKSON, J.

Tbe action against tbe defendant, Carteret Ice, Transportation and Storage Company (hereafter called Ice Company), was before tbis Court at Fall Term, 1922. Tbe Ice Company filed a demurrer, wbicb was sustained by tbe court below, and tbe plaintiffs appealed to tbis Court. Tbe Morebead City Sea Food Company (hereafter called Sea Food Company) also filed a demurrer in tbe court below, wbicb was overruled and leave given it to answer over. Tbe demurrer of tbe Ice Company in tbis Court was overruled and both companies given leave to answer over. Way v. Sea Food Co., 184 N. C., 171. Tbe law and facts are fully set forth in tbat opinion, in wbicb Walicer, J., says: “It seems from tbe allegations of tbe complaint, admitted in law by tbe demurrer, tbat before tbis action was brought tbe plaintiffs notified tbe defendants that they would elect to take cash for their stock, and demanded payment of it, the other stockholders, except one, B. C. Way, having elected to take stock in the Ice Company in exchange for the stock held and owned by them in the Sea Food Company. It appears further that the latter company has sold or disposed of all its property, and has further been taken over and absorbed by the Ice Company. The terms of the agreement between the two companies and their stockholders makes the cash, which' each stockholder of the Sea Food Company elects to take for his stock in that company, directly payable to him and not to his company, and this clearly gives him the right to sue for the same if it is not paid to him on proper demand for the same. There is here not only an express promise by the Ice Company to pay the money for the stock at par value, that is, so many dollars for each share, but the Ice Company has received the property and assets of the Sea Food Company as a consideration for the promise so made by it. It cannot hold the property and repudiate its promise, but the law will exact full performance of the same. The case, in principle if not in form, is not unlike that of Friedenwald Co. v. Tobacco Works, 117 N. C., 544, the facts of the two cases being substantially alike.”

The lee Company and the Sea Food Company both filed answers to the plaintiffs’ complaint. The case came on for hearing, and the court below submitted the following issue to the jury:

“Did the plaintiffs or either of them elect to accept stock in the Car-teret Ice, Transportation and Storage Company for their interest in the purchase price of the lands and property conveyed to said Carteret Ice, Transportation and Storage Company, under the contract referred to in the pleadings?” The jury answered “No.”.

The court charged the -jury as follows:

• “I construe that contract to mean that they were entitled to receive cash for their stock for their interest in this transaction, and that they should have been paid cash under their option unless they had elected to take stock, and I charge you they never notified them that they would take stock.”

The defendants filed seven exceptions: The first was to allowing the witness, B. P. Way, to be asked and to answer:

“Q. I will ask you, Mr. Way, did you at any time authorize or consent for anybody to take stock in the Ice Company instead of cash, concerning this transaction, for your part or your brother’s ? Answer: No, sir, I did not accept the stock or authorize them to accept stock.’ ”

This exception goes to the heart of this action. The decision by Walker, J., supra, disposes of this exception and it cannot be sustained.

Tbe complaint set forth fully all tbe allegations plaintiffs relied on as giving them a cause of action against tbe defendants. Tbe defendants filed demurrers. In tbe court below tbe Sea Food Company’s demurrer was overruled with leave to answer over and tbe Ice Company’s demurrer was sustained, and plaintiffs appealed to this Court. This Court overruled tbe demurrer with leave to both to answer over. Defendants filed answers. Tbe question asked tbe witness Way was to tbe material allegation as tbe basis of tbe cause of action which this Court said was a good cause of action.

Tbe other exceptions are to tbe refusal of tbe court below to nonsuit; tbe issue submitted; tbe charge of tbe court; and refusal to set aside verdict and judgment of court. None of these exceptions can be sustained.

The Sea Food Company regularly, by its proper officials, passed tbe following resolution:

“Resolved that, whereas, after full and free discussion of tbe condition of tbe company, and tbe outlook for tbe future business interests of tbe company, it is deemed wise and for tbe best interests of tbe stockholders to dissolve tbe company, and in order to do so it must dispose of its holdings; therefore be it resolved that we offer to tbe Carteret Ice, Transportation and Storage Company all this company’s holdings of real estate, on which is located tbe ice factory, cold storage, packing bouse, sidetracks and water front, with riparian rights of tbe same, free from all encumbrances and claims óf all person or persons whomsoever. Possession to be given 1 December, 1919, for tbe sum of $40,000 cash. This option to be valid and binding until 1 November, 1919. Tbe stockholders of tbe company hereby reserve tbe right to take stock in tbe consolidated company as their interest may appear from tbe records of this company.”

Tbe Ice Company regularly, by its proper officials, passed tbe following resolution:

“Resolved, that tbe proposition of tbe Morehead City Sea Food Company, to sell its real estate holdings as reported by tbe directors to this meeting, for tbe price of $40,000, payment to be made in cash, or in lieu thereof to such stocleholders of the Morehead City Sea Food Company as may elect to take stoclc of this company, at par, be and tbe same is hereby accepted; and tbe directors of this company are hereby authorized and directed to carry out and complete tbe purchase and transfer of said properties.” (Italics ours.) Tbe sale was duly consummated.

Tbe evidence of both B. C. Way and B. P. Way was to tbe effect that they elected to take cash instead of stock, and made demand for tbe cash. The defendants introduced three witnesses, men of high charae-ter. From a careful perusal of their evidence it was not in conflict with the evidence of the Ways, and to some extent corroborative. The court below took this view. The contracts between the Sea Food Company and the Ice Company, as shown by the resolutions, were admitted by all.

The court below was warranted, from the law and evidence, in making the charge as set out in the record. From a careful review of the whole record, the court can find no error that would entitle defendants to a new trial.

No error.  