Parberry v. Woodson Sheep Co. , 18 Mont. 317 ( 1896 )

PembertoN, C. J.

The counsel for appellant’ contend that the findings of the court, set out substantially in the statement, are not supported bv the evidence. It appears that the only thing plaintiff ever did tending to show that he was ever the owner or purchaser of any of the stock of the defendant company was to receive a certificate of the stock of the company from the hand of the president, which certificate had on the back of it an endorsement transferring the stock back to the company, and to sign such endorsement, and hand the certificate back to the president. It was shown that there was no consideration demanded, paid, promised, or contemplated in this transaction; that there was no agreement ever proposed, much less entered into, by which the company was to sell, and plaintiff to purchase, any stock of the company. The evidence is that he did not purchase any stock of the company. He permitted the trustees to issue to him the certificate of stock, with the understanding that he should immediately transfer it back to the company, for the sole purpose of accommodating the trustees in organizing the company. There could be no sale or purchase of the stock ordinarily unless there was an agreement in the minds of the parties to that effect. (21 Am. & Eng. Enc. Law, p. 9116, and authorities cited.) There is not in the evidence a pretense of any such agreement of the minds of the parties in this case. We therefore think there was ample evidence to support the finding of the court that the notes sued on by plaintiff were given for the property sold by plaintiff to the defendant company, and not for the stock of said company. To hold that by reason of the transaction between the parties in relation to the receipt and transfer of the certificate of stock, as shown above, plaintiff actually became a purchaser of the stock of the company; that his immediate transfer of the stock back to the company constituted a purchase by the company; that the notes sued on by plaintiff were given in consideration of the sale of said stock to the company, and are therefore null and void, for want of authority of the company to jrarchase its own stock, — • would be, in effect, to hold that the plaintiff should, by such transaction, lose the property he sold to the company, forfeit his right to recover on the notes in suit, and render himself liable for the difference between the value of the property he sold to the company, to-wit: §72,000 and §119,997, the par value of the stock the appellant contends he purchased, and for which it is contended he executed the notes he is seeking to collect. Such a holding we think absolutely abhorrent to every principle of law, equity, and justice.

We think, too, that the finding of the court that plaintiff’s debt was ‘ ‘not secured by any mortgage, lien, or pledge upon real or personal property’ ’ at the time of the commencement of this suit is amply supported by the evidence, the substance of which is contained in the statement, and need not be restated here. The plaintiff had the right, we think, to waive his rights to the pledge of the stock to secure his debt and attach the property of the defendant company, to satisfy the debt for which the stock was pledged. (Drake on Attachment, (7th Ed.) § 39, and authorities cited; Buck v. Ingersoll, 11 Metc. (Mass.) 226; Wooddy v. Jamieson, (Idaho) 40 Pac. 61.)

The appellant contends that the trustees of the defendant company had no authority to execute the notes sued on by plaintiff, and that they were null and void, because given for the stock of the corporation; that the giving of the notes by the corporation was an act ultra vires.

It is also contended by the appellant that the court erred in permitting the plaintiff to amend his affidavit for attachment after the intervention of the intervenor.

Having held that the findings of the court are supported amply by the evidence, and believing that these findings are decisive of the real issues of the case, we deem it entirely unnecessary to treat these or any other errors assigned by appellant.

• ¥e think the case was fairly tried and the proper result reached by the trial court. The judgment and order appealed from are affirmed.

Affirmed.

HuNt, J., concurs. De Witt, ,J., not sitting.