145 So. 456 | Ala. | 1932
The submission was on motion and the merits.
There are many assignments of error that are submitted with a proper grouping of kindred propositions, and will be so considered by this court. Polytinsky v. Johnston,
The trial was had on count 4 for money had for the use of plaintiff, and on pleas of the general issue, pleas 4 to 8, inclusive, for merger of agreement into subsequent written subscription, accord and satisfaction, and the *139 bar of limitations, as to issue of stock by corporations. Section 7014 of the Code.
We now consider the motion to substitute the receiver in this court and made for the first time here. It was made to appear, by the application for substitution in this court, that B. D. Speer was appointed receiver of the Bankers' Mortgage Bond Company, and by that decree placed in full charge and control of all of its properties and assets; that he was not a mere stakeholder, but the real party in interest in this cause and interested in the conduct of the suit, asks that there be order of substitution here, and that the case be continued in his name as such receiver.
A receiver who is not a mere stakeholder should be permitted or allowed, on due and proper application or motion and proof, to intervene, prosecute, and direct the proceedings in the cause to final judgment. Lacy, Terrell Co. v. Rockett,
These authorities are not decisive of the question now presented — the right of intervention in this court when the bankrupt took the appeal before adjudication and appointment of the receiver and petitioner here. In the case of W. C. Sterrett, as Receiver, etc., v. Second National Bank of Cincinnati, Ohio,
We are of opinion the receiver's motion should be denied. The right of appeal is by statute. The defendant corporation took the appeal and assigned errors. There is no statute or rule that authorizes the intervention and substitution of parties as sought.
The evidence has been carefully examined, and there were material conflicts presented on the several issues of fact, and general affirmative instruction requested by defendant was properly denied. McMillan v. *140
Aiken,
An actual tender of the corporate stock is not required, if the purchaser is shown to be ready, able, and willing to return the stock but is prevented by the seller declaring it will not be received as rescission. Americanized Finance Corporation v. Yarbrough,
In Southern Building Loan Ass'n v. Bartee,
When the plaintiff and husband seasonably demanded her money to liquidate the mortgage on her home on or about February 1, 1930, in accordance with representation of such repayment on her demand, made to her by the selling agent when she purchased the stock and the return of her money refused, and thereafter she carried the stock so purchased to the office of defendant and said to the manager of the bond department, and to the executive vice president of the corporation in charge at the time, that she wanted or demanded the return of her money, and it was refused, she did what the law required of her to effect rescission of the sale thereof.
It may be further noted that before her suit she discovered that the common stock sold her by defendant's representing agent was not authenticated as provided by statute, in that the corporation had not complied therewith by recording the certificate authorizing its issue in the probate office; and that immediately after this knowledge she brought this suit, recovering under the count for money had and received. Christie v. Durden,
This court has held that the misstatement of a material fact relied upon, and that induced to making the contract, was sufficient and vitiating fraud, though made with no intent to deceive [section 8049, Code of 1928, and authorities there collected; Gulf Electric Co. v. Fried,
It should be said the dealings of the respective parties constitute a negotiation or a continued transaction for the respective shares of common and preferred stock, sold in units of one for one of "common and preferred stock"; the subscription therefor of date of September 7th, was signed by the plaintiff, that on September 9th was not so subscribed; that the stock was not delivered, according to the evidence of Mr. Rosenthal, at the time it was issued, and there was a balance due on the purchase price; that the delivery was seven or eight days after the payment of the purchase price, though the receipts therefor are dated September 9 and September 10, 1929, and though Mrs. Rosenthal did not know the date of its delivery. The weight of the evidence showed and supports the *141 judgment rendered, that the sale was on the consideration and promise entering into the transaction and applying to the aggregate purchases. The evidence for plaintiff was to the effect that Mrs. Rosenthal "could get her money at any time"; that all of her "stock was payable on demand," and that purchasers "could get it any time"; that demand was made for the return and was refused even after the demand was renewed to and by the executive officer in charge of that department of the company.
The evidence showed without conflict that the authorization of the issue of common stock, issued to plaintiff in September, 1929, was not recorded in the probate office of Jefferson county, the domicile of that corporation, as provided by law.
The minutes of the meeting of stockholders of date of May 24, 1928, show the authorization of the increase of capital stock, but did not relate to such stock issued in September, 1929. The meetings of July and August, 1929, are proven by defendant's witnesses, but are not shown to have been recorded in the probate office, as were the minutes of the 1928 meetings of stockholders covering the authorized increase of common stock.
Thus we are brought to a consideration of the statute adverted to in the oral charge and to which exceptions were reserved. Article 5, Code of 1928, § 7005 et seq., provides and regulates the right of issue of two or more kinds or classes of stock. Section 7006 provides that stock of a class preferred in any respect over stock of any other class may be created or authorized with the consent of the owners of two-thirds of the capital stock of the corporation outstanding, (1) by amendment of the original certificate of incorporation "filed as required by law in the office of the judge of probate," or (2) in a joint agreement of merger or consolidation duly adopted and filed in the office of the secretary of state, "as provided by law"; or (3) at a meeting of the stockholders called for such purpose, etc., adopted and authorized, and duly certified and filed in the probate office where its principal place of business is domiciled.
It is further provided for the issue of stock without nominal or par value and that "all common stock issued shall be subordinate to the preferences given to preferred stock." Randle v. Winona Coal Co.,
The instant suit was brought on September 15, 1930, and by way of rescission, deceit, and the common counts for money had and received. The count for deceit was eliminated on the trial; the common counts were subject to other limitations, within which suits can be brought, than those declared in the last-quoted statute. It was required to be brought within three years from the date of issue and delivery of the stock in question. Section 8947, Code.
It follows from this that the inquiry as to whether the authorization of the issue of common and preferred stock was recorded in the probate office was res inter alios acta in a suit like this, and was improperly admitted in evidence for this reason. Such negative matter may be shown in a proper case, as was done here, after a proper predicate of due search of the appropriate record is made. McPhelemy v. McPhelemy,
Under the pleading and evidence the court committed no error in refusing appellant's requested written charges 3-A and ff; they were properly refused for that they instructed that plaintiff could not recover and ignored *142 the evidence of fraud in the sale of the stock to plaintiff. On the other hand, there was no error in the refusal of charges gg and hh on reasons stated in the foregoing application of sections 7013 and 7014 of the Code. "Even though" justifies the refusal of gg; and hh was confusing.
The refusal of charge D was error; it correctly stated the law. Langhorne v. Simington,
Refused charge 8-A did not hypothesize the phase of evidence that defendant induced plaintiff to purchase and sign the subscription of stock by fraudulent representations. Americanized Finance Corporation v. Yarbrough,
The evidence shows, as we have indicated, that the two classes of stock were sold as the result of one negotiation, representations, and sale, and if the moving consideration and inducement to the sale and payment of the moneys, sought to be recovered, were accomplished and obtained by fraud, the right of action exists as declared. Bynum v. Southern Building Loan Ass'n,
It results from the foregoing that there was error in the oral instructions to the jury to which exceptions were duly reserved, and which we denominate 4 and 5.
The giving of charge kk and the refusal of charge 7-A may provoke confusion (Louisville N. R. Co. v. Parker,
Under the pleading and evidence the material questions of fact were for the jury. McMillan v. Aiken,
The measure of recovery or damages in such suit is stated in Southern Building Loan Ass'n v. Wales,
It is unnecessary that we cover other objections or exceptions, since the matter may not be presented on another trial. The judgment of the circuit court is, therefore, reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.