166 P. 672 | Utah | 1917
Does the complaint state facts sufficient to constitute a cause of action? That is the only issue presented by this appeal. Paragraphs 1 and 2 of the complaint allege the capacity of the plaintiff as administrator of the estate of Mary J. Allred, deceased and also the corporate existence of the defendant. The complaint then proceeds:
"(3) That the said Mary J. Allred, at the time of the incorporation of said defendant, subscribed for 26 shares of its capital stock, and that at the time of said subscription she fully paid said defendant for said shares of stock by the execution and delivery to it of a certain quitclaim deed; that said defendant failed and neglected during the lifetime of the said Mary J. Allred to issue to her its certificate evidencing her ownership of said shares of its capital stock, and has ever since neglected and failed to issue the same to her, or to her legal representatives; that this plaintiff, since his appointment and qualification as administrator as aforesaid, demanded of said defendant to issue its certificate of stock for said shares to him as administrator as aforesaid, and to deliver the same to him, and that he made such demand on or about the 24th day of February, 1916, but notwithstanding the subscription aforesaid, and notwithstanding the demand of this plaintiff as aforesaid, said defendant refused to issue or deliver such certificate to the plaintiff, or any other person, and still refuses so to do; that said stock was at the time of said refusal, and still is, of the reasonable value of $125 per share, or an aggregate value of $3,250.” (Prayer for judgment.)
The complaint is brief and inartificial. It is not as comprehensive and complete as is required by the models of good pleading, but the question we have to consider is: Does it state facts sufficient to constitute a cause of action ? The allegations as to the capacity of the plaintiff and the corporate existence of the defendant are unexceptionable. The complaint, in effect, states that plaintiff’s intestate, at the time of the incorporation of the defendant, subscribed for 26 shares of its capital stock, and fully paid defendant therefor by delivering to it a certain quitclaim deed; that the defendant, during the lifetime of plaintiff’s intestate, failed and neglected to deliver to her a certificate evidencing her ownership of said stock, and likewise neglected and failed to issue a certificate to her legal representatives; that plaintiff, after his appointment and qualification as administrator, as such demanded of defendant that it issue to him, as administrator, a certificate for said shares; and that the defendant refused to issue or deliver said certificate to the plaintiff, or any other person, and still refuses so to do. Plaintiff then alleges the value of the stock, and demands judgment for damages and costs. All of these allegations are admitted by the demurrer.
While the issue presented by this appeal is simple, and exceedingly so, appellant and respondent seem to be at variance in their understanding as to what the subissues are in determining the principal or main issue. Appellant seems to think the main question is whether or not it is an action for conversion, and whether or not that is the proper remedy. Respondent insists that the question before the court is one of pleading, and not the propriety of a selected remedy. As to the form of the action, it is wholly immaterial under the issues presented. This court, in a case in nearly every respect similar to the case at bar, used the following language:
‘' It is not necessary for us to consider that this is an action of trover, and that trover is not the proper remedy. To do so would be to tie the pleadings down again to set forms. Some of the language used may be*74 that used in trover, but some certainly is not, and it matters very little, under the practice act, whether the language used be that belonging -to the form of one action or another, or to no form of action. The material question is: Do the facts stated show the plaintiff entitled to any remedy, legal or equitable? If so, then the court could not say that the complaint did not state facts sufficient to constitute a cause of action. ’ ’ Kuhn v. McAllister, 1 Utah, 274.
In the case just cited the plaintiff brought his action for the conversion of shares of stock in a mining corporation. Judgment in the court below was entered against defendant by default. Defendant appealed, and in this court contended that the.complaint did not state facts sufficient to constitute a cause of action. The old common-law doctrine was invoked that shares of stock in a corporation, being incorporeal and intangible, are not the subject of conversion, and that therefore trover would not lie. ' That was the principal contention ; and in disposing of it this court used the language above quoted. The case is also authority for the proposition that shares of stock in a corporation are the subject of conversion, and that that form of action will lie. That cause was affirmed by the Supreme Court of the United States, 96 U. S. 87, 24 L. Ed. 615.
We do not know that the form of action in this case is seriously questioned; but it may be stated generally that the modern authorities are almost a unit in holding that shares of stock in a corporation may be the subject of conversion, or the wrongful withholding thereof a breach of contract, and that an action at law for damages is a proper remedy. We cite a few leading authorities in support of the proposition:
“ Where the officers of a corporation refuse on demand to issue a certificate to a person entitled thereto, Ms appropriate remedy is by action against the corporation for damages, or in equity to enforce the issue and delivery of the certificate. ” 26 A. & E. Eney. of Law, 876; 28 A. & E. Eney. of Law, 651; 1 Machen, Corp. section 515; 4 Thompson, Oorp. section 3490 et seq.; 10 Oyc. 609, 610.
In State v. Carpenter, 51 Ohio St. 83, 37 N. E. 261, 46 Am. St. Rep. 556, an Ohio case, the action was mandamus in the court of common pleas to compel the officers of a corporation to issue certificates for shares of stock that had been subscribed and fully paid for. The court rendered judgment in favor of
"Our conclusion is that, where the officers of a private corporation, organized for profit, refuse, upon demand, to issue a certificate of stock to a person entitled thereto, his appropriate remedy is by action against the corporation for damages, or in equity to enforce the issue and delivery of the certificate. If, for any reason, the one does not, the other will, afford Mm a plain and adequate remedy, and he may resort to either at his election. Mandamus cannot, therefore, be properly invoked. ’ ’
The last ease is cited specially, not only because it is in point in its essential facts, but because there' is an intimation, at least, in the argument that the court below thought mandamus was a proper form of action, and for that reason sustained the demurrer. Let it, however, be understood, as stated, in effect, in our quotation from Kuhn v. McAllister, supra, that we are not attempting by this opinion to determine the particular form of action of the present case, whether a conversion, which at common law was called trover, or whether it is an action for damages arising from a breach of contract. The distinction for the purposes of this ease is wholly immaterial. The single question is: Does the complaint state facts sufficient to constitute a cause of action for any relief? If it does, the demurrer should have been overruled; if not, the judgment of the court below was correct.
Numerous veiled suggestions appear in respondent’s brief relating to matters outside the record. It is, perhaps, needless to say that such allusions and suggestions are improper, and can have no influence whatever upon the judgment of this court in determining the questions submitted for its consideration. It is a fundamental rule of practice that, as against a general demurrer, a pleading should be liberally construed. Applying that rule to the present case, we are of the opinion that the trial court erred in sustaining the demurrer and entering judgment dismissing the action, and for that reason the judgment must be reversed.
The cause is therefore remanded to the district court of Weber County, with instructions to said court to reinstate plaintiff’s complaint, overrule the demurrer interposed thereto, permit the defendant to file an answer to said complaint upon such terms as may be just, and proceed with the hearing of said cause. Appellant to recover costs on appeal.