No. 11181 | Wash. | Jan 17, 1914
This action was brought to recover $1,663.59 from the defendant, which it is alleged he drew from the bank account of the plaintiff in excess of the amount due him for his services as its general manager. The answer is in effect a general denial. The court found that the defendant had drawn from the plaintiff’s bank account $1,030.29 in excess of the amount due him, and entered a judgment against him for that amount, with interest and costs of suit. The defendant has appealed.
The appellant asserts a counterclaim of $1,500, the proceeds of 7,000 shares of his stock which were sold by the respondent’s secretary and treasurer with the consent of the appellant and retained by the respondent under an agreement that the plaintiff could draw against it. The respondent meets this claim in four ways; (a) that the counterclaim is not pleaded; (b) that the appellant paid nothing for his stock; (c) that the sale of the stock to the extent of $1,000 is represented by a note which has not been paid, and
In respect to the contention that the counterclaim is not pleaded, it is sufficient to say that the evidence was admitted without objection, and, under the uniform decisions, of this court, the issues became as broad as the evidence.
Upon the third contention, that $1,000 of the stock is represented by an unpaid note, the evidence shows, that the note was drawn in favor of the respondent, that it was using it as collateral at the time of the trial, and that it claims to own it.
The principal contention is that the appellant paid nothing for the stock, and hence that he was not entitled to the proceeds of the 7,000 shares which represent the $1,500. This was the view taken by the trial court. The facts in brief are these: The appellant held a bond upon the “Wonder” group of mining claims, situate in the Ten Mile mining district, in Idaho county, in the state of Idaho. One A. A. Hammer, although not named in the bond, appears to have had some interest with the appellant. The appellant, Hammer, and one Stone organized the respondent corporation. They were its first trustees. The appellant was elected president and general manager, and continued in that capacity until January 22, 1912. Hammer was elected its secretary and treasurer, and held these offices at the time of the trial. The minute book of the respondent shows that Hammer made a written offer to the respondent to assign the bond to it for 200,000 shares of its capital stock, 100,000 to himself and 100,000 to appellant, its capital stock being 300,000 shares, the respondent “to assume and carry out all the terms of said bond . . . and that said bond be taken in full payment of the subscription of said Hammer and Rice.” The minute book shows that the respondent “unanimously accepted” the proposal, and directed the secretary to issue the stock upon the assignment of the bond. The bond was assigned and later duly filed for record. The rights of
It is further suggested that the sale of the appellant’s stock is not binding upon the respondent. It suffices to say that it received, and still holds, the proceeds of the sale. Harvey v. Sparks Brothers, 45 Wash. 578, 88 Pac. 1108.
The respondent received the proceeds from the sale of the appellant’s stock on the third day of January, 1911. The appellant is entitled to a judgment against the respondent for $1,500, with interest from the third day of January, 1911, at the legal rate, less $1,030.29, with legal interest from the 22d day of January, 1912. The judgment is reversed, with directions to enter a judgment in harmony with this opinion.
Ckow, C. J., Ellis, Main, and Chadwick, JJ., concur.