202 P. 725 | Or. | 1921
— In the case at bar, the findings of fact made by the court are very full. Among the ultimate facts necessary to support the judgment, we find evidentiary facts and conclusions of law. However, this court has said:
“It is sometimes difficult to distinguish • between conclusions- of fact and conclusions of law, because it may be that a statement of fact cannot be made without including a conclusion, or it may be that a conclusion of law is such that, in the attending circumstances, it must be stated in the form of a statement of fact. ‘The line of demarcation between what aré questions of fact and conclusions of law is not one easy to be drawn in all cases. * * We deduce the ultimate fact from certain probative facts by a process of natural reasoning. We draw the inference or conclusion of law by a process of artificial reasoning ; but this last process is often in such exact accord with natural reason that the distinction is scarcely appreciable. # # If, from the facts in evidence, the result can be reached by that proc'ess of natural reasoning adopted in the investigation of truth, it becomes an ultimate fact, to be found as such.’ ” Oregon Home Builders v. Montgomery Inv. Co., 94 Or. 349, 356 (184 Pac. 487).
The issues made by the pleadings present the following questions:
Is the corporation bound by an erroneous date of the certificate of stock issued, sold, and delivered to the plaintiff?
Second, was the sale of stock made to the plaintiff contrary to the terms of the Blue Sky Law (so designated for convenience) ?
Third, did plaintiff purchase the stock in reliance upon fraudulent representations of defendants knowingly made?
The Farmers’ Union Grain Agency is a corporation organized, owned and controlled by farmers, under the laws of the State of Oregon, with its principal office located at Pendleton. Its directors are B. O. Earnheart, H. J. Bosenberg and W. W. Harrah, and its secretary and treasurer is B. W. Ayers. Prior to the second day of February, 1918, the capital of that corporation was $50,000, consisting of 5,000 shares of the par value of $10 each. On January 17, 1918, 3,708 shares of the capital stock of the corporation had been sold and issued to divers persons, leaving unsubscribed and unissued 1,292 shares thereof. On and prior to January 17, 1918, farmers residing in Athena and vicinity were endeavoring to induce the defendant corporation to build and operate at Athena a grain elevator for the use of the plaintiff Cannon and other citizens of Athena and vicinity. On this date, interested citizens called and held an informal meeting at Athena for the purpose of considering the construction of a grain elevator, at which meeting the plaintiff, with other citizens, was present and took part. The defendants were invited to attend, and did attend, that meeting. At that meeting the plaintiff, Boy Cannon, acting with various other citizens of the neighborhood of Athena, undertook to induce the Farmers’ Union Grain Agency to construct a grain elevator at Athena, and as a consideration for such co-operation plaintiff, acting with such
Pursuant to the conditional agreement to purchase stock, the directors of the defendant corporation regularly held a meeting at its office in Pendleton, Oregon, on the nineteenth day of January, 1918, called a special meeting of the stockholders and took all steps necessary to increase the capital stock of the corporation from $50,000 to $200,000.
On February 2, 1918, the corporation commissioner of the State of Oregon issued to the defendant corporation a certificate of increase of its capital stock from 5,000 to 20,000 shares, and from $50,000 to $200,000 capital. On February 18, 1918, the defendant corporation caused to be issued to plaintiff Boy Cannon its certificate numbered 418 for 180 shares of the increased capital stock of the corporation and of the value of $1,800. Thereupon, the First Na
On the seventeenth day of January, 1918, the corporation was unable to pay dividends, but it was not unable to pay its debts, was not being operated at a loss, was not indebted to W. W. Harrah, R. O. Eamheart or H. J. Rosenberg, its directors. Neither were the defendants, or any of them, on that date, trying to sell stock in the corporation or to raise money by the sale of stock to pay themselves, or to relieve themselves from any liability upon any negotiable paper that the corporation had issued. Further, the codefendants of the corporation were in no manner liable for any debt of the defendant corporation.
The plaintiff did not, on the twenty-fifth day of October, 1919, first, or at all, discover that the representation made by the defendants, or any of them, was false, or that at the time the stock was issued and sold to plaintiff by the defendants the corporation did not own the stock. The plaintiff did not, on the twenty-fifth day of October, 1919, first, or at all, discover that he had been deceived by the defendants in the manner alleged in his complaint. The stock sold to plaintiff was not in excess of the number
Stock certificate numbered 418 was incorrectly dated. However, the plaintiff was not deceived thereby. That a writing is truly dated is not a conclusive, but a disputable, presumption of evidence: Section 799, par. 23, Or. L. The court was clearly within the law in holding that the true date of the certificate of stock could be established by parole.
This is not a case where the minutes of a corporation are being contradicted by parole. No minutes were kept, nor was there made any written record of the conditional subscription or offer of the plaintiff and his associates to purchase the stock of the defendant corporation. Again, the minutes of subsequent meetings do not show the date of the issuance of certificate numbered 418.
“The doctrine is now almost universally recognized that parol evidence is admissible to prove the unrecorded acts and transactions of the corporate body, or of its board of directors. * * It necessarily follows, then, that the acts of corporations, in the absence of a record, may be proved by the testimony of competent persons. And where no minutes are kept of the proceedings of a meeting, they may be proved by parol.” 2 Thomp. Corp., § 1847.
“Where the minutes contain a record of action taken, it will be presumed, prima facie, that the record covers the entire action. This is not conclusive, however, and parol evidence may be introduced to show what was in fact done. Furthermore, if it is apparent upon the face of the minutes that they are incomplete, they cannot be treated as conclusive evidence of what transpired.” 4 Fletcher, Cyc. Corp., p. 4054.
The plaintiff alleges that defendants sold him stock of their own issue without obtaining a dealer’s permit from the corporation commissioner of the State of Oregon, and that for that reason the sale is void. The findings of the' court are to the effect that the defendant corporation was not a dealer within the meaning of the Blue Sky Law, when engaged in its transaction with plaintiff. The court found that the stock was not sold to Cannon at a profit or on com-, mission, nor was that stock offered for sale to the public.
Looking to the Blue Sky Law of Oregon for the definition of “dealer,” we have:
“The word ‘dealer’ within the meaning of this act, shall include every * * corporation which is now engaged, or which shall hereafter engage in the selling to others at a profit or on commission * * any stocks, bonds, notes, contracts or other securities of whatsoever kind or character # # . And, provided further, that any * * domestic corporation * * doing*43 business within this state * * which shall hereafter offer its own securities for sale to the public, shall be considered a dealer within the meaning of this act.” Section 6838, Or. L.; Section 1, Chapter 324, Laws 1915.
The court found, and is abundantly supported by the evidence that the defendants made no fraudulent representations- to the plaintiff.
The case is affirmed.
Affirmed. Rehearing Denied.