Wheeler v. Barnes

The defendant seeks in his appeal a correction of the finding under the method provided in General Statutes, § 5832, which involved the printing of the entire evidence. He moves that paragraph eighteen of the finding be stricken out. An examination of the evidence discloses that paragraph eighteen is an inference from matters in evidence which could reasonably have been drawn.

The motion also asks that the conclusion of the court from the subordinate facts found, stated in paragraph one of part two of the finding, be stricken out. This is an improper method of attacking a conclusion of the court drawn from subordinate facts. Such a conclusion can only be attacked as an error in law.Palumbo v. Fuller Co., 99 Conn. 353, 122 A. 63. In seeking the correction of a finding, parties should observe the suggestions made by us in Hartford-ConnecticutTrust Co. v. Cambell, 97 Conn. 251, 116 A. 239, and thereby frequently obviate cumbering the record with the entire evidence at great expense to litigants.

The parties were at issue as to whether a valid sale of the plaintiff's interest in the corporation had been made, the defendant claiming that since the interest of the plaintiff was a "chose in action of the value of one hundred dollars or upwards," the contract to sell his interest was not enforceable by action because barred by the statute of frauds. General Statutes, § 6131; DeNunzio v. DeNunzio, 90 Conn. 342,97 A. 323.

There was no controversy that the transaction constituted a sale of a chose in action, and was therefore within the terms of the statute. There was no note or memorandum in writing of the contract of sale signed by the defendant or his agent. The plaintiff claimed that under the facts, the requirements of the statute had been otherwise satisfied. The assets of the corporation were in the hands of the plaintiff as secretary, treasurer and general manager of the company at the time the contract was made, and were thereafter turned over by him to the defendant, the president of the corporation. This was not such an acceptance and actual receipt of a "part of the goods or choses in action" contracted for, as satisfied the statute. The situation presented is almost identical with that dealt with inDeNunzio v. DeNunzio, supra. In that case we held that the turning over of the assets of a corporation by the vendor of an interest in a corporation, to another owner of an interest in a corporation, was not such a delivery of the whole or part of the interest of the vendor in the corporation sold as to satisfy the statute. The fact that no stock certificate had been issued to the plaintiff does not make such a delivery of assets of the corporation an actual or constructive delivery of a part or the whole of the chose in action claimed to have been sold. DeNunzio v. DeNunzio, supra. "A certificate of stock is not necessary to render one a stockholder in a corporation. . . . Every stockholder has a right to a proper certificate as soon as he has paid for his shares, unless there is some provision or agreement to the contrary." Fletcher, Cyclopedia Corporations, Vol. 5, § 3483. A stockholder in a corporation who has not received the evidence of his ownership in the shape of a certificate, may sell his interest to another without procuring and delivering or tendering a certificate, subject, however, to the requirements of the statute of frauds, if the value of the interest makes it applicable. Ford v. Howgate, 106 Me. 517,76 A. 939.

The requirements of the statute were satisfied, however, in this case by a part-payment of the consideration for the contract to sell. The consideration for the contract to sell by the plaintiff was the agreement by the defendant to pay $200 within a reasonable time, and his authorization of the plaintiff as general manager, secretary and treasurer of the company to pay $600 from the funds of the company to himself in settlement of a valid claim for $1,800 which he held against the company for milk, cream, and products sold to it. This authorization by the defendant was of value to himself, since it diminished the liabilities of the company whose sole stockowner he was about to become, and the plaintiff deemed it of value to himself as it gave him $600 cash for a claim that had an indefinite collectible value. As general manager of the company he had authority to pay or compromise debts owed by it. Fletcher, Cyclopedia Corporations, Vol. 3, § 2130, § 2131. Although he had this authority, the plaintiff did not desire to compromise his own claim of $1,800 even for $600, without the consent of the only other owner of an interest in the corporation. As to the adequacy of consideration, see Anson on Contracts (Huffcut Ed.) p. 102.

In accord with the contract of sale and the authorization of the defendant, the plaintiff (vendor) as treasurer of the corporation paid himself $600 from the corporation funds, and canceled his claim of $1,800 against the company. This executed-part of the contract of sale was a "part-payment" which, under the statute, makes the contract enforceable.

In the "Law of Sales — Waite," when dealing with the subject of a part-payment under the statute of frauds, the author, on p. 276, states the law as follows: "Payment is construed to cover the goods, services, or any other thing which forms the quid pro quo for the title." Since a contract of sale where the consideration promised by the vendee is something other than money is within the statute, it would be anomalous to hold that when a portion of the consideration from the vendee had been executed, that the requirement of the statute as to a part-payment had not been satisfied. See also Williston on Contracts, Vol. 1, § 565; Davis v.Carnegie Steel Co., 157 C.C.A. 281, 244 F. 931, 935.

We hold therefore, that on the facts found, the "buyer" in this case "gave something . . . in part payment" on the contract, in the language of the statute, and that therefore, the statute does not bar a recovery.

The fact set forth in paragraph eighteen of the finding, to the effect that the parties agreed "that the transfer into the custody and control of the defendant of all of the assets of the corporation and the exercise of dominion over them by the defendant did constitute a transfer to the defendant of the plaintiff's three-fourths interest in said corporation," cannot be held to satisfy the requirements of the statute.

The parties cannot by agreement dictate to the courts what facts shall satisfy the requirements of the statute.

There is no error.

In this opinion the other judges concurred.