He also avers that said corporation is of recent creation, and is reputed to have large copper and gold mineral holdings in the Republic of Mexico, which it is just beginning to develop, but that it has not yet paid any dividends; that it has issued and sold all the stock that it now proposes to sell, and no more stock is now for sale by it; that its formance if the shareholder had refused to comply with the contract; and that since there was a part performance of the contract by the shareholder of which the corporation had taken advantage, the damages to the shareholder caused by the failure of the corporation to perform its part of the contract, under the circumstances of the case, could not readily be ascertained or compensated if the shareholder was compelled to keep his stock and sue for damages in a court of law. . And in First Nat. Bank v. Corporation Securities Co. Minn., 150 N. W. 1084, it was held that a shareholder who elected to sell his stock within the time prescribed in the contract for repurchase by the corporation, and made a sufficient tender thereof, was entitled to a degree of specific performance notwithstanding the fact that the agreement before the time of election was lacking in mutuality of remedy. The court said that mutuality of remedy is not the sole test of specific enforceability, and is not always essential thereto. The court quoted with approval from the opinion in Henry L. Doherty & Co. v. Rice, 186 Fed. 213, where it was said with reference to a contract for the sale of corporate stock, which originally lacked mutuality of remedy: "The objection of want of mutuality of remedy in the sense in which equity uses those terms no longer exists. Complainants seeking specific performance offer to perform on their part, and unreservedly submit themselves to the court to decree whatever may be proper in enforcing the stock is not procurable in the open market for any known price, and its value is not readily ascertainable; that the stock has no provable value, and is sold by the holders thereof at different prices; that the enterprise of the corporation, from a financial standpoint, is uncertain, and therefore he cannot be compensated in damages for defendant's breach of contract. Defendant answered, denying that he had contracted to buy the stock, but admitting that on the 29th of August, 1910, he and plaintiff had a conversation in regard to the purchase of the stock, and that the price talked of was 35 cents per share. He also admits that, on that day, a memorandum in writing was made of their agreement, which, he alleges, was an option, and not a sale. That memorandum he exhibits with his answer, and avers that it was made at a later hour in the day than the writing claimed by plaintiff to be their contract; that neither of them was bound by the agreement, but that it was only an option on the part of both; and that either party had a right to refuse to consummate it. The memorandum reads as follows: Memo. 8/29/10. Dr. Bartlett agrees to buy Morgan's Mary Mining Company stock, rights of the other party to the contract. If defendants accept their offer, complainants cannot afterwards retract it, and thus escape a decree in favor of the defendants. If, on the other hand, defendants refuse the offer, and unsuccessfully resist specific performance, they cannot be compelled to perform, unless performance of every stipulation of the contract for their benefit is likewise coerced from complainants. either event complete enforcement of the legal and equitable rights of the parties will be effected by one comprehensive decree, and the defendants cannot be remitted to a court of law for the enforcement of any of their rights." In But a contract for the sale of a part of the corporate stock of an amusement company in consideration of certain payments, which also provided that the amusement company should be entitled to first call upon a certain theater company-of which the purchaser owned a majority of the stock for theatrical attractions that the latter company should produce for the period of ten years, will not be specifically enforced at the instance of the purchaser to compel a delivery of the stock, since it could not be enforced at the instance of the seller to secure a performance on the part of the theatrical company to furnish the stipulated talent to the amusement company continuously throughout the time designated, as equity will not award specific performance where the duty to be enforced is continuous and reaches over a long period of time, requiring constant supervision by the court. [Signed] H. M. Plaintiff replied generally, and depositions were taken by both plaintiff and defendant, and on the 22d of January, 1913, the cause was finally heard, and the decree denying relief and dismissing plaintiff's bill was made. 3,400 shares, for $1,190, on or before and the court entertained jurisdiction and 9/15/10, if Morgan will sell at that price granted relief in both cases. McGuffin had when Bartlett gets ready to buy. Morgan organized a corporation for the purpose of agrees to sell at that price unless offered a mining coal in Mingo county, aand induced better price. Hogg to purchase 50 shares of the capital stock at the par value of $100 per share, agreeing with him, at the time of his purchase, that, if he should wish to dispose of it within two years thereafter, he (McGuffin) would give him in exchange therefor 50 shares of stock in the Harvey Coal Company. Hogg elected to make the exchange within the time, and so notified McGuffin. But in the meantime McGuffin had sold his Harvey Coal Company stock to a third person, and therefore could not comply with his contract. The court held, however, that by virtue of his contract Hogg had a right to the funds derived from the sale of the Harvey stock. This was as near to a specific performance of the contract as the court could approach in that case on account of the intervening rights of innocent third parties. The first point of the syllabus in that case is as follows: Apparently the court dismissed the bill for want of jurisdiction in equity. In this we think the court erred. That equity has jurisdiction to grant relief by decreeing specific performance of a contract for the sale of stock in a corporation, when the stock has a special or peculiar value and is not readily purchasable in the market, or when it has no certain ascertainable value, there can be little doubt, That such is the law of this state was held in Hogg v. McGuffin, 67 W. Va. 456, 31 L.R.A. (N.S.) 491, 68 S. E. 41, and Bumgardner v. Leavitt, 35 W. Va. 194, 12 L.R.A. 776, 13 S. E. 67. The former was a suit by the purchaser of stock in a coal company, and the latter was a suit by the seller of stock in a steamboat company, Pantages v. Grauman, 112 C. C. A. 61, 191 Fed. 317. Defenses uncertainty and incompleteness of contract. Supplementing notes in 50 L.R.A. 507, and 31 L.R.A. (N.S.) 497. "Equity will decree specific performance of a contract for exchange of shares of stock in corporations when legal remedy is not adequate because the stock sought is of special and peculiar value, or is not readily | nection with the corporation, is too indefinite to be specifically enforced. Sheehan v. Humphreys, 81 N. J. Eq. 416, 83 Atl. 189. -lack of mutuality. See notes in 50 L.R.A. 507 and 31 L.R.A. (N.S.) 499. See in this connection cases cited, supra, under heading "Mutuality of remedy." -fraud. and 31 L.R.A. (N.S.) 500. A contract for the sale of corporate stock may be specifically enforced over the objection of uncertainty in regard to the price to be paid and the time and manner of payment, where it appeared that the contract clearly stated the price to be paid, and proA contract for the sale of corporate stock vided that a certain sum due from the seller to the buyer should be applied upon tion that it is unfair, where it did not may be specifically enforced over the objecthe price; that the buyer should assume and pay a certain sum, being one half of appear that advantage had been taken of the seller's financial circumstances; that the seller's indebtedness to a third person, the valuation was placed upon the stock and should deposit the balance-$2,500— subject to call to meet future assessments, by both parties, and was to be paid for by in consideration of the performance of canceling the seller's present debts and adwhich the seller agreed to deliver the stock vancing part of the price to meet expected as soon as it was released from pledge; it obligations of the seller which he otherwise could not pay. Gilfallan v. Gilfallan, being held that since there were no assessments, the payment of the balance-$2,500 -was due when delivery of the stock was offered or by the terms of the contract should have been offered. Gilfallan v. Gilfallan, Cal., 141 Pac. 623. But an agreement by one for the sale and transfer of stock owned by him in a certain corporation at a certain price per share, which did not mention the number of shares, and in which it was expressly understood that the seller would retain a portion of his stock as he did not wish to sever his con Cal. 141 Pac. 623. -disposition of stock to other persons. Supplementing notes in 50 L.R.A. 509 and 31 L.R.A. (N.S.) 501. Specific performance will not be ordered to compel the transfer of a given number of shares of corporate stock, where it is not shown that defendant has the shares of stock in his possession. Lamb v. General Film Co. 130 La. 1026, 58 So. 867. A. L. R. purchasable in the market, or has no certain ascertainable value, or a money judgment against the party would be worthless because of his insolvency, or other circumstance in the case calling for specific performance as the only adequate relief." In the Bumgardner v. Leavitt Case, Mrs. Bumgardner had purchased stock from Leavitt in a steamboat which he was building, under a contingent agreement that he would repurchase the stock, at cost, or, if the boat depreciated in value, then at a fair cash value. The contingencies happened, and she gave him notice of her election to resell him the stock, and requested him to comply with his agreement. He declined and she sued for specific relief and obtained it. The same rule was again announced in Lathrop v. Columbia Collieries Co. 70 W. Va. 58, 73 S. E. 299. The following authorities are also in point: Safford v. Barber, 74 N. J. Eq. 352, 70 Atl. 371; Northern C. R. Co. v. Walworth, 193 Pa. 207, 74 Am. St. Rep. 683, 44 Atl. 253; Manton v. Ray, 18 R. I. 672, 49 Am. St. Rep. 811, 29 Atl. 998; Palmer v. Graham, 1 Pars. Sel. Eq. Cas. 476; 36 Cyc. 560; 26 Am. & Eng. Enc. Law, 2d ed. 122. The general rule is that for a breach of contract for the sale of personal property the parties are left to their remedy at law. But there are many exceptions to the rule. Where, because of the peculiar and exceptional value of the property, as in the case of slaves (Summers v. Bean, 13 Gratt. 404), or in case of heirlooms (26 Am. & Eng. Enc. Law, 104), or the inability to duplicate the property in the market, and the uncertainty of its value, and, therefore, uncertainty in the matter of ascertaining the amount of damages. In such cases equity will generally compel performance. St. Regis Paper Co. v. Santa Clara Lumber Co. 173 N. Y. 149, 65 N. E. 967. Stock in a corporation, not procurable in the market and having an uncertain value, comes within the exception to the general rule respecting specific performance. Inadequacy of legal remedy is the basis for equity jurisdiction to enforce performance. The general rule also is that the remedy is a mutual one. Bumgardner v. Leavitt, supra, and 26 Am. & Eng. Enc. Law, 28. To this general rule there may also be exceptions, as, for instance, where one party is bound by a writing signed by him, and the other has not signed it and is not so bound because of the statute of frauds. But it is not necessary to inquire into the exceptions to the rule, because the present case falls within the general rule respecting mutuality of remedy. If one party has the right to enforce the contract the other has also. A number of persons in and around Clarksburg, where the parties to this suit resided, owned stock in the Mary Mining Company, and it is contended that plaintiff could easily have proved the value of his stock, and consequently the amount of his damage, if any he suffered. But it is shown by the depositions of witnesses that about the time the alleged agreement was made, and before and after that time, the stock had sold at different prices, ranging all the way from 15 cents to 65 cents per share, according to the degree of faith that the sellers and purchasers, respectively, happened to have in the success of the corporation's enterprise. Defendant was the owner of 19,000 shares at the time he made the alleged agreement with plaintiff, and he says he was offered shortly thereafter 2,000 shares, at 25 cents per share, by Mr. A. J. Simmons, of Clarksburg, who was the owner thereof. This evidence proves that the stock had no certain market value. It had no rating in the stock market, and every man who had stock, and wanted to sell it, sold at such price as he was able to get. It also appears that about this time many of the stockholders, in and about Clarksburg, had lost faith in the ultimate success of the corporation's enterprise, and wanted to sell their stock. Under such conditions and circumstances, it would have been impracticable for plaintiff to prove the amount of his damages, and therefore his remedy at law was not adequate. Consequently, if he has proved his contract, ne is entitled to have it enforced. The next question is: Has the contract of sale been proved? We think it has. Defendant admits, in his deposition, that he signed the agreement exhibited with the bill, but insists that the option which he filed with his answer, signed "H. M.," was later, on the same day, left on his desk, and that it annulled the agreement signed earlier in the day by both parties. He does not say he was present when the option was writ ten, or that it was handed to him by Morgan. He says: "My recollection does not serve me correctly as to the exact time I found it, but I found this on my desk after we had made this other contract." We are forced to the conclusion, from this and other evidence, that defendant must be mistaken as to the time this option was written out and signed with the initials of plaintiff and left on his desk. It must have been before, and not after, the contract exhibited with the bill was written and signed by both parties. Plaintiff and defendant occupied adjoining office rooms, which communicated with each other, and they met frequently, sometimes more than once on the same day. Plaintiff swears that they had two transactions on the 29th of August, one before noon and one after noon; that in the former they had a conversation, and agreed orally to what is stated in the option signed "H. M.;" that after their talk he wrote out the option, retaining a carbon copy, and placed it in an envelop addressed to Dr. Bartlett, and then returned to deliver it to him, and did not find him in his office, and left it on his desk; that at that time he (plaintiff) did not wish to enter into a binding contract to sell at 35 cents a share, because he hoped to get a better price, and says that, a week before that, he had been offered 50 cents a share by E. F. Goodwin, an officer in the Mary Mining Company, who lived in Clarksburg; that, after talking with defendant, he again went to Goodwin and asked him what he ought to get for his stock, and found that Goodwin or his clients were not so anxious then to buy, and he again went to defendant's office in the afternoon and told him, if he would enter into a positive agreement of sale, he would sell him the stock at 35 cents per share, and that thereupon the contract sought to be enforced was written out by defendant, and was then signed by both of them. Defendant does not deny that the paper was then turned over to plaintiff, or that he wrote it. Is it not highly improbable that experienced business men (and they both appear to be such) should make a written contract, mutually binding, and then later attempt to convert it into an option, not binding on either of them, without canceling the original agreement? It l was not only wholly unbusinesslike, but the so-called option was valueless and useless. It is not even a unilateral contract; it obligated neither party to do anything. It makes no reference to the original contract, and therefore does not seem to have been intended as a cancelation of it. The only rational explanation to be found for the existence of the two papers, the execution of both of which is admitted by the parties, is that the so-called option was made first and the sale contract later. This conclusion leads to a reversal of the decree. A decree will be entered here requiring defendant to pay to plaintiff the sum of $1,190, with interest thereon from the 15th day of September, 1910, and that he be then entitled to the 3,400 shares of stock, and that he pay plaintiff his costs, both in this court, and in the court below. Reversed, and decree entered here. Lynch, J., absent. burden of proof passenger elevator. - fall of 2. Proof by a passenger in an elevator in an office building that he was injured by its fall due to a defective bolt casts upon its owner the burden of showing that he took all the precautions to safeguard take. passengers which the law required him to Same -test by manufacturer -necessity. 3. The owner of an elevator in an office building which falls to the injury of a passenger because of the breaking of the bolt which unites the cables to the car has the burden of showing that the manufacturer made a test of the tensile strength of the bolt if that would have disclosed its weakness, or if the apparatus had been used so long that the manufacturer's negaccident, he must show that he examined ligence might not have been the cause of the and tested the parts to ascertain whether or not they had been weakened by use. Elevator liability for manufacturer's negligence. 4. The owner of an elevator in an office building is liable for injuries to passengers because of the negligence of the manufacturer of the apparatus in using an unsafe bolt to unite the cables to the car. Judge judge. prejudice calling other 5. There is no error in one of several judges of a trial court having co-ordinate jurisdiction calling in another judge to try a case after an allidavit of prejudice had been filed against himself, although the affidavit was not filed within the time specified by statute. *Generally as to liability for injury to an elevator passenger, see notes in 25 L.R.A. 33, and 2 L.R.A. (N.S.) 744. Note. Liability of a carrier for injury to passenger by latent defect in car. The earlier cases on this question are discussed in the note to Morgan v. Chesapeake & O. R. Co. 15 L.R.A. (N.S.) 790. When a passenger is injured because of a latent defect in a car of the carrier, his right to recover for such injuries may be based either upon the negligence of the carrier or upon the theory that the carrier A (May 1, 1914.) PPEAL by the defendant from a judgment of the Circuit Court for Milwaukee County in plaintiff's favor in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Modified. is an insurer. The latter theory, viz., that the carrier is an insurer, has never been adopted, but the passenger's right to recover is based upon negligence. It is a general rule that the carrier owes to passengers a very high degree of care, and any failure to exercise this high degree of care is regarded as negligence. It is in determining what acts or omissions of the carrier amount to a failure to exercise this degree of care that a difference of opinion arises. The general rule that a carrier is not liable for latent defects is well established and is adhered to in Roanoke R. & Electric Co. v. Sterrett, 108 Va. 533, 19 L.R.A. (N.S.) 316, 128 Am. St. Rep. 971, 62 S. E. 385, in case of a defective bridge which the carrier had purchased from a thoroughly reputable and competent manufacturer. It is the theory of some cases that the liability of the carrier is not determined solely by his care, that is, although he may have exercised the requisite degree of care in inspecting the car and maintaining the same, yet if the manufacturer has been negligent in failing to discover the latent defect, the carrier is liable for the manufacturer's negligence. This is the theory adopted in DIBBERT V. METROPOLITAN INVEST. Co. This was the theory of Morgan v. Chesapeake & O. R. Co. 15 L.R.A. (N.S.) 790, and this theory was followed in a second appeal of this case reported in 129 Ky. 731, 112 S. W. 859. As shown in that note this theory is also adopted in New York and California. This seems also to have been the theory of Gaiser v. Niagara, St. C. & T. R. Co. 19 Ont. L. Rep. 31, 14 Ont. Week. Rep. 42. In that case, however, there was the additional fact that the carrier did not make a proper examination of the car wheel; and the flange which broke owing to a latent defect arising from an air hole therein had been worn down so as to become thin over the air hole, and there was testimony to the effect that it might have been discovered by a proper examination, which the carrier failed to make; so that the decision might have rested upon the negli gence of the carrier itself in failing to make proper tests. It is apparent that this theory carries the liability of the carrier to an extreme. The fact that the carrier has selected a competent manufacturer is not alone sufficient to relieve it of liability, if such manufacturer has been negligent. See the cases in the earlier note holding the contrary doctrine. Take the abstract case of an injury to a passenger due to a latent defect in a car. It is admitted, on the one hand, that the carrier is not an insurer, but is liable only for negligence. But negligence is a relative term, and depends upon the duty of the carrier. One theory might be that the duty of the carrier-and this seems to be the least duty that can be imposed on the carrier-is fulfilled when he has purchased the car of a reputable manufacturer; that he is under no obligation to inspect it. Another theory might impose more of a duty upon the carrier, and require him not only to purchase of a reputable manufacturer, but to inspect after the car had been in use. Or a still more burdensome duty might be imposed upon the carrier, and that would be to require him not only to purchase of a reputable manufacturer, but to inspect the car before it is put into use and continue this inspection at seasonable times thereafter. It is conceivable that a court which adheres to the first theory might still be of the opinion that the carrier should not be relieved of liability for an injury due to a latent defect, and might, in order to furnish a basis for its decision, say that the carrier is liable for the manufacturer's negli gence, whereas the defect may have been one that could have been discovered by the carrier by a proper inspection by it. such a case it is more accurate to require a higher degree of care of the carrier, and base the decision upon a failure to comply with this degree of care; in other words, upon its own negligence rather than upon the negligence of the manufacturer. In A failure to distinguish in the degree of care or the duty which the carrier is held |