Castle

This is a rehearing of an appeal from a judgment in an action for damages for the breach of a contract and for partial failure of the consideration therefor.

The plaintiffs were the owners of an ice-cream business in Merced, called the Castle Ice Cream Company, valued at $45,000, which was sold and delivered to the defendant corporation subject to an indebtedness of $26,679.65, which obligation was assumed by the purchaser. The sale was consummated pursuant to the terms of a written contract which was executed by the respective parties August 22, 1922. The title to the ice-cream plant passed to the purchasers. In addition to assuming the indebtedness above mentioned, the balance of the purchase price agreed upon was the sum of $1,000 in cash, which was paid and the transfer of “common stock of the Acme Ice Cream Company in the amount of $9,000 par value,” which was issued by the corporation and delivered to the plaintiff. In the contract for the purchase of the Castle Ice Cream Company it was agreed that plaintiffs might exchange one-half of the common stock which was transferred to them for preferred stock of the corporation of a similar value. C. O. Swanberg, the president of…