Biering v. Ringling , 74 Mont. 176 ( 1925 )

On Motion for Rehearing.

MR. JUSTICE STARE

delivered the opinion of the court.

Counsel for defendant filed a petition for a rehearing in this case upon various grounds, among them being that the court overlooked a material and vital question relative to the sufficiency of plaintiffs’ evidence to sustain the judgment, for the reason that, in the opinion filed, no mention was made of the effect of certain minutes of the proceedings had at meetings of the boards .of directors of the Taylors Fork Company and the Southern Montana Company.

It did not appear to us that a consideration of the effect of these minutes was material to a decision of the case as presented in the record. Counsel, however, urge their views in this matter with such insistence that we add to what is said in the original opinion the following observations relative to the sufficiency of the evidence to sustain the judgment:

Without objection, each of the plaintiffs testified that the agreement between themselves and the defendant, by which they were induced to join with him in organizing the Southern Montana Company for the purposes and upon the terms and conditions recited in the complaint, was made by oral negotiations carried on between them some time in the spring of 1921. Upon cross-examination of the plaintiff Biering, it was shown that subsequent to ‘the time when this agreement was made, and on May 19, 1921, the plaintiffs caused a meeting of the board of directors of the Taylors Fork Company to be held, at which a resolution was adopted containing a recital to. the effect that the defendant had made a proposition to the company that he would transfer certain sheep to the Southern Montana Company and assist in financing its operations, upon condition that the Taylors Fork Company would transfer to said corporation all of its property, consisting of real estate, land contracts and leases, with the equipment appurtenant thereto, and that, as a consideration therefor, the defendant should receive one-half of the stock of said corporation, less seven shares, to be issued to other persons to qualify them as directors, and that the Taylors Fork Company, or Biering and Cunningham, as its principal stockholders, should receive a like amount of the stock of said corporation.

In connection with the cross-examination of the same witness, over objections of the plaintiffs, there was also introduced in evidence the minutes of a meeting of the board of directors of the Southern Montana Company, held on May 27, 1921, in which it was disclosed that the defendant and the plaintiffs were both present, and at which the defendant made a proposal to the company that he would turn over to it 12,000 head of ewes and approximately 250 head of bucks and all livestock and property used in connection with the handling of the same, free and clear of all encumbrances, and would agree to assist the company in financing itself and. disposing of its commercial paper in consideration of 2,493 shares of its capital stock, The minutes also showed that at this meeting the plaintiff Cunningham stated to the directors* that, as a stockholder and director of the Taylors Fork Company, he was authorized to announce that said company would transfer to the Southern Montana Company all of its real estate and additionally some personal property, in consideration of 2,493 shares of its capital stock. The minutes show that both of the above propositions were accepted.

Counsel urge that the recitals contained in the minutes of these two meetings constitute written evidence of the contract between the plaintiffs and the defendant; that any oral arrangements which may have theretofore been made between them must be deemed merged in the written contract thus disclosed; that, since these minutes refer only to the fact that the defendant was to turn over to the Southern Montana Company 12,000 head of ewes and 250 bucks and assist in financing it, but do not contain any recitals that he was to finance or assist in financing this company, so as to enable it to stock its ranches to their capacity of 27,000 head of sheep, the rights of the parties. to this action must be determined solely by the recitals contained in these minutes; that it was not competent, to vary these recitals by oral testimony; that the evidence wholly failed to establish that defendant had not done everything he agreed to do, according to the recitals contained in these minutes, and hence the plaintiffs had not sustained the burden of proving their case.

There is no merit in this contention. It is manifest that the resolution shown by the minutes of the meeting of the board of directors of the Taylors Fork Company was adopted only as a part of the means of carrying into effect the contract which had theretofore been entered into between the plaintiffs and the defendant, and that it was not intended that it should state what that contract was, and it did not, in fact, purport to do so.

So far as the minutes of the Southern Montana Company are concerned, they do not in any manner pretend to state •the terms of any agreement between the parties to this action. Nothing contained in them even remotely intimates the existence of such an agreement. According to their recitals, the defendant made a proposition to this company which was accepted. The Taylors Fork Company likewise made a proposition to the company which was accepted. That is all these minutes assume to state. They do not purport to state the terms of any agreement made between the plaintiffs and the defendant individually at the time this meeting was held, or at any other time.

Therefore a consideration of the circumstances under which the recorded minutes of a corporate meeting are deemed to have the effect of a contract was not essential to a determination of the case on this appeal. The other grounds advanced in support of the petition for a rehearing amount only to a reargument of the appeal on its merits, and we aré satisfied with the original disposition of them.

The motion for a rehearing is denied.

Behearing denied.

Associate Justices Holloway, Galen and Matthews concur. Mr. Chief Justice Callaway, having been absent on account of illness when the cause was originally heard and submitted, did not take part in the former decision and takes no part in this.