113 P. 442 | Or. | 1911
Lead Opinion
Opinion by
“It was plain enough, his actions, just what he said, that he wouldn’t have anything more to do with it; and he went off and I never heard anything about him for some time afterward. * * He never mentioned it (stock) or asked for it at any place or time.”
W. D. Hare and J. C. Shute testified to the same effect. But this constitutes no representation of any fact that justified defendant in assuming that he had surrendered his stock or abandoned it to the corporation. His acts and declarations only relate to what he would or would not do in the future, and was not a representation of any existing fact. The very first element of an estoppel is absent, namely, a representation of a fact—a past or present state of things. Here it was a mere statement of the intention of plaintiff. There was no element of agreement as to the future. Bigelow, Estoppel 570. His stock represented his interests in the corporation of which the certificate was the evidence of his title, and it was not lost or transferred by abandonment for failure to pay the value thereof. Nor did his statements involve the stock in any manner, and if the officers of the defendant anticipated his refusal to bear his portion of the burdens, as represented by his stock, they should have taken steps to cancel it or otherwise terminate his title thereto. The conduct of the officers thereafter shows that they did not consider that plaintiff had abandoned it, as at the meeting of the board of November 20, 1908, at which plaintiff was present, and participated in the business of the meeting, it was ordered that “A. W. Anthony be charged against his stock to be issued to him for his share, beginning with the $5,000 paid November 15, 1903,
“Mr. Shute at that time had no associates. He went over there to examine that mine, and he seemed pleased with it, and on the way back he agreed and asked me if I would superintend the mine provided he bought it.”
Evidently no arrangement had been made at that time to incorporate, nor any agreement made binding Mr. Shute. On the contrary Shute expressly denies that he made such an agreement, and W. D. Hare testifies that on or about November 20, 1902, at Hillsboro, an agreement was made by which “Anthony was to put in his time and Mr. Shute, Joseph and I. and Artie (meaning J. W. Shute, J. C. Hare, himself, and A. C. Shute) was to furnish the money to run the mine, to operate for that year. * * He was to put in his time against the use of our money in operating it.” J. W. Shute testified, that “he (Anthony) was willing to take hold for the season and
Therefore, the decree of the lower court will be modified to the effect that, upon the payment by plaintiff of $553.50, with interest thereon at 6 per cent per annum from May 21, 1904, the date of the assessment, said 1,000 shares of stock in defendant company be issued to plaintiff; and that each party pay his own costs in both courts. Modified.
Rehearing
Rehearing denied March 21, 1911.
On Petition for Rehearing.
Opinion by
The motion is denied.
Modified: Rehearing Denied.