Calliope Mining Co. v. Herzinger

| Colo. | Sep 15, 1895

Mr. Justice Goddard

delivered the opinion of the court.

To support the issues upon her part the plaintiff introduced in evidence the transcript of the'minutes of the meeting of the company held August 20, 1889, as follows:

“ The board of directors of The Calliope Mining Company held their second regular monthly meeting August 20, 1889, for the purpose of declaring their second monthly dividend September 10, 1889; ” and the deposition of E. J. Bent, secretary and treasurer of the company, to the effect that the dividend thus provided for was one per cent per share; that the prior dividend of July 20, 1889, was never paid; that after the meeting of August 20, 1889, no other meeting was held until August 5, 1890, and that the company did not declare any more dividends ; that it was his understanding that the Denver office paid a dividend of one per cent per share on all stock which had been sold, but did not pay out a cent of dividends to any one of the four promoters and directors of the company (among whom was Mr. Herzinger) ; that while, under this arrangement, no money was drawn by the four directors, large sums out of the amounts thus due as dividends were used to purchase other properties for them, and secured in their individual names.

We are at a loss to perceive how, under the testimony introduced, the judgment of the court below can be sustained. There is no evidence to show that any dividend was ever legally declared upon the stock in question, while, on the other hand, the evidence of plaintiff’s own witness shows that by express agreement between Herzinger and his copromoters, their stock should be pooled and not draw dividends ; and the surplus or profits that might have accrued to the stock by way of dividends, had they been legally declared, was used to purchase other properties, secured in their individual names. But aside from this, if dividends did, by any possibility, accrue to the stock in question, then, under and by the express terms of the contract of sale to Mears, such dividends would pass to him, it appearing from the evidence that the contract under which he purchased was never- forfeited, but, on the other hand, the consideration finally agreed upon was fully paid and the stock transferred to him and his copurchasers thereunder.

Error is assigned upon the action of the court in striking out portions of the depositions of Hartwell, Walsen and Mears, introduced on behalf of defendant, wherein they testified as to what occurred between Herzinger and Mears on March 14, 1890, at a meeting in Denver, in relation to the acceptance by Herzinger of an agreed sum in full settlement for, and the transfer of, the 125,000 shares of stock in question, in pursuance of such settlement.

The record fails to disclose the ground upon which the court predicated its action, but from the argument of counsel for plaintiff in error we infer that the testimony was excluded for the reason that it tended to vary the terms of the written agreement. We think, under the pleadings, the testimony was relevant and material. In its second defense the company allege that the contract of October 9, 1889, under which the stock in question was purchased by Mears, was on the 14th day of March, 1890, fully adjusted and discharged. In support of these allegations of the answer, the testimony excluded was clearly admissible, and it in no sense tended to vary the terms of the original agreement. Parol evidence is admissible to show that a written agreement was discharged by a new, additional, or substituted agreement. 1 Greenleaf on Ev., sec. 302-304; 2 Wharton on Ev., sec. 1017.

Defendant in error has not filed any brief or argument in this court, and we are not advised of any ground upon which the exclusion of this testimony can be upheld, nor of any theory upon which the judgment of the court below can be sustained, and from a careful reading of the record we are unable to discover any. The judgment is accordingly reversed.

Reversed.