Dowling v. Wheeler

Mar 13, 1906

Reporters:: , ,
Before:: Bland

BLAND, P. J.

(after stating the facts).

1. The answer of defendant alleges, in substance, that the agreement of the stockholders, dated December 28, 1901, set *180out in the petition, provides for the sale of all the assets and shares of stock of the Standard Tile Company and not for the separate sale of each stockholder’s shares; that all the stockholders of the company have a common interest in the fund realized at the sale, that their interest is a united one and that plaintiff, as an individual stockholder, has no separate interest therein and cannot maintain this suit. The parties ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the agreement placed their several certificates of stock in the hands of Brown,’ as trustee, with power to sell said stock and all the assets of the corporation, including all real and personal property and choses in action at public auction, on the day named in the agreement, to the highest bidder, conferring upon Brown, as such trustee, power to execute a quitclaim deed to the real estate and to turn over the personal‘property and shares of stock to the purchaser. There was no separate offer or bid made for the plaintiff’s individual stock, but the bid was for all the shares of stock owned by the plaintiff and all other stockholders of the corporation at ten dollars per share for each and all shares of stock. The purchase was of all the stock of the corporation, including,that of plaintiff, at one time and by one bid, but on the basis of ten dollars per share for each share of stock that had been issued by the corporation. In its legal aspect, the transaction was not different from what it would have been had the defendant, on the day he made his ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍bid, in the presence of all the stockholders said to them, “I will give you ten dollars per share for your stock, if each one of you will transfer to me all of your certificates of stock and turn over to me the entire assets of the corporation,” and his offer had been accepted by all the stockholders. The agreement of December twenty-eighth is a joint one only in so far as it bound each stockholder to place his certificate of stock in the hands of Brown, as trustee, to be sold at auction and to abide by the sale after it was made. There was no agreement that the proceeds of the sale should become a joint or common fund, belonging to *181all the stockholders; on the contrary, the agreement imports that after the sale each stockholder should receive the price per share hid on the whole number of shares turned over by him to Brown, as trustee. In legal contemplation, therefore, the sale was of the shares of stock held by the individual members of the corporation and not a joint sale of all their stock on joint account, and we think ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the plaintiff can maintain this action.

2. Defendant offered in evidence the pleadings in •an interpleader’s suit, brought by Brown against Wheeler et al., -in respect to the five hundred dollars earnest money, placed in the hands of Brown by Wheeler under the terms of the auction sale. These pleadings were excluded by the court. In the interpleader’s suit, it appears that plaintiff claimed his proportion of the five hundred dollars. By his interplea, plaintiff sought to hold the defendant to his bargain and to force him to accept’and pay for the stock on the basis of his bid at the auction sale. By the present suit he is seeking the same relief on the same state of facts. The only difference between the two suits is that in the interpleader’s suit the plaintiff seeks to recover a part of the purchase price of his stock, whereas in this one he asks for the recovery of the entire purchase price. Of course, he cannot recover in both suits. Defendant, however, insists that plaintiff has split one entire cause of action and made them the subject of two separate suits. This fact was called to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the attention of the court by the defendant’s answer, and we would hold that plaintiff cannot prosecute both actions were it not for the stipulation read in evidence, which is to the effect that defendant agreed that the interpleader’s suit should abide the result of the present one. We think this stipulation is a distinct waiver of the objection that the plaintiff had split his demand and is improperly prosecuting this action.

3. No point is made on the instruction of the court to the jury, but defendant earnestly insists that in the *182light of the evidence, that defendant’s bid for the stock was double its actual value at the time, it is apparent he bid under a misapprehension in respect to the value of the assets of the corporation and that he was led into this error by the erroneous and misleading report of the financial condition of the corporation, made by Hutchinson to the stockholders. If this was a suit in equity, the appeal to us would not be in vain; but the action is at law and no doubt the same appeal was made to the jury on the trial. The jury, it ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍seems, was unmoved by the appeal. We are without authority to review the evidence or to correct or set aside the verdict, even though we may believe it is against the weight of the evidence and is for the wrong party; for where there is any substantial evidence to support a verdict, that verdict is invulnerable to attack on appeal, and this court is compelled by the rules of appellate procedure to accept the verdict as conclusive on all issues of fact raised by the pleadings.

Discovering no reversible error in the record, the judgment is affirmed.

All concur.