197 P. 996 | Mont. | 1921
delivered the opinion of the court.
The complaint in this action states two causes of action; one upon a promissory note for $327.50 with interest at eight per cent per annum, and the oth§r upon an open account for goods, wares and merchandise sold and delivered to the defendant of the reasonable value of $3,299.53, no part of which has been paid except the sum of $2,866.05, leaving a balance due of $433.48.
The answer to the first cause of action admits the execution and delivery of the note and its nonpayment, and undertakes to plead failure of consideration. In answer to the second cause of action, defendant admits that between the dates mentioned therein he purchased and received from plaintiff certain goods, wares and merchandise, but denies that the value thereof exceeded $3,117.41. The answer also contains a counterclaim for $770.14 for grain sold and delivered to the plaintiff. Upon the allegations of the counterclaim there was issue raised by reply.
At the conclusion of the testimony the court directed a verdict in favor of the plaintiff for the amount due upon the note and submitted the second cause of action to the jury, with the result that a verdict in favor of plaintiff in a lump sum for $916.16 was returned and judgment entered thereon. From the judgment and from an order denying his motion for a new trial defendant appealed.
1. Complaint is made of the action of the court, in directing a verdict for plaintiff upon the . first cause of action.
A “stockholder” is the owner of shares in a corporation which has a capital stock. (Sec. 3822, Rev. Codes.) “Shares of stock” in a corporation are not things which can be seen, handled or delivered (Morrice v. Aylmer, L. R. 10 Ch. App. 148; Payne v. Elliot, 54 Cal. 339, 35 Am. Rep. 80), but merely incorporeal’, intangible things existing only in bare, abstract legal contemplation. (Burrall v. Bushwick R. Co., 75 N. Y. 211; 14 C. J. 387.) A share represents an aliquot part of the total capital stock (Farrington v. Tennessee, 95 U. S. 679, 24 L. Ed. 558 [see, also, Rose’s U. S. Notes]), and is most frequently designated a chose in action. (4 Thompson on Corporations, sec. 3467; 14 C. J. 389.) The subscription for shares and the acceptance of the subscription
With these elementary principles in view, the question before us presents no difficulty. The defendant subscribed for thirty shares of the capital stock of the plaintiff corporation and made settlement therefor by the execution and delivery of his note. The plaintiff accepted the subscription and received the note in payment as it had the right to do. (State v. Clements, 37 Mont. 314, 96 Pac. 498.) This constituted a transfer (sec. 4632, Rev. Codes), and thereupon the title to the ownership of the stock, ipso facto, vested in the defendant. (Mason v. Lievre, 145 Cal. 514, 78 Pac. 1040;
Since defendant received full consideration for his note, there was not any defense to the first cause of action, and the court properly directed the verdict.
2. During all the times covered by the transactions involved
We think the trial court extended the operation of the rule further than the circumstances of the ease warranted. In the absence of any excuse for not calling the bookkeeper, the account should not have been received. (3 Jones on Evidence, see. 573.) Furthermore, the account shows upon the face of it that it was not kept correctly. In this instance, however, the discussion is more academic than practical for
The order denying a new trial is affirmed. The cause is remanded to the district court, with directions to modify the judgment by reducing the amount $84.26, as of the date of the judgment, and as thus modified it will stand affirmed. Each party will' pay his own costs in this court.
Modified and affirmed.