Appeal from the District Court of the United States for the Western District of Wisconsin.
Before EVANS, SPARKS, and ALSCHULER, Circuit Judges.
This action was brought to recover a money judgment for breach of a contract wherein appellee allegedly agreed to endeavor to sell appellant's holdings of a certain railroad (Pittsburgh & West Virginia Railway Company) stock, upon appellant's agreeing not to offer his stock for sale. Controversy is over the number of shares included in the syndicate agreement. The court directed a verdict for appellee and followed it with a judgment dismissing the action. This appeal followed.
On June 6, 1927, the parties made the following written agreement:
"Confirming our talk, it is understood that if you will agree not to dispose of your holdings of stock in The Pittsburgh & West Virginia Railway Company during the life of the Syndicate, then such holdings of stock shall be treated the same as the stock in the Syndicate; that is, upon any disposition of the stock held by the Syndicate as a part of any transaction passing control of The P. & W. Va. Railway Company, (a majority of the stock of said company being held by the Syndicate and other parties with whom agreements similar to this are had), your stock shall be included in any such transaction, and you shall receive the same price for your stock as is received for the Syndicate's holdings.
"Will you kindly indicate your agreement with this method of holding and disposing of your stock in The P. & W. Va. Railway Company, and oblige.
"Yours very truly,"S F. E. Taplin.
"Four thousand shares of Pittsburgh & West Virginia stock is held by E.W. and S. W. Backus.
"The above represents my understanding and I agree not to sell my holdings of stock in The P. & W. Va. Railway Company except in accordance therewith.
The present litigation is over an alleged enlargement of this agreement to include shares of stock in said company acquired by appellant after June 6, 1927.
Appellant*fn1 increased his holdings of this stock to 8,140 shares which he was holding on October 16, 1929, when the syndicate was closed through the sale of the stock for $170 per share. Included in this sale were 4,000 shares of appellant's stock. Appellant, however, had 4,140 more shares of this stock, 4,000 of which were ...