Hathaway v. Foy, 40 Mo. 540

Hathaway v. Foy

40 Mo. 540 | Mo. | 1867

Holmes, Judge,

delivered the opinion of the court.

The case presents those leading facts: The defendant Eoy was an original subscriber for one hundred shares of stock in the People’s Railway Company. No certificate of stock had been issued to him. He declined to pay instalments, but no measures were taken to enforce payment or forfeiture. The plaintiff desired to obtain these shares. An agent of the plaintiff states that he went to Foy on his behalf ; that Eoy said he did not want the shares if he had to pay instalments thereon, and would relinquish them; that he told Foy that the plaintiff would take them, and that Eoy assented, and that he had an indistinct recollection that some writing to that effect was given by Eoy for the plaintiff, but was not positive. There was no other evidence of *543the existence of any written transfer. The plaintiff went to the company, represented to them that he had been substituted in place of Eoy as a subscriber for these same one hundred shares of stock, gave them an obligation to save the company harmless, and received a certificate for one hundred ■shares of stock, on which he paid the instalments that were called for, and received the dividends until Eoy notified the company that he still claimed to be the owner of the stock subscribed by him, when the company refused to pay any more dividends to the plaintiff and required him to refund what had been paid, and the money was refunded to await a determination of the controversy.

The plaintiff now brings this suit in the nature of a bill of interpleader against Foy and the company, and prays that "the plaintiff may be declared to bo the owner of the one hundred shares of stock, that Foy may be divested of all title to it, and that the company may be decreed to pay the dividends to the plaintiff.

It is plain that there is no equity in the petition. This plaintiff cannot maintain a bill of interpleader in such a case. If such a bill could be maintained at all, it could only be done by the company. The ground of jurisdiction in such cases is, that the plaintiff is in the position of a mere stakeholder, claiming no right in the subject matter, but being liable to be vexed by two or more suits, in the names of different persons, going on at some time—2 Sto. Eq. Jur. § 806-7 & § 821; Freeland v. Wilson, 18 Mo. 380.

If the plaintiff is entitled to these dividends, he has a remedy at law ; and so of the other claimant. If the claim were for the same dividends on the same stock by two different persons, and suits were threatened by both, there might be a case which would entitle the company to maintain a bill of interpleader ; but if the case be such that both these parties would be entitled to hold the stock subscribed, or taken by them respectively, there would be no case for an inter-pleader at the suit of the company, and the whole matter would have to be determined at law.

*544As this bill- must be dismissed, it is not deemed proper to-go further into the merits of the case at this time. We remark- only that the evidence produced here to prove a transfer of his stock by the defendant Foy to the plaintiff, or a-substitution- of the plaintiff in his place, as a subscriber to-this-same stock, is altogether too indefinite and uncertain to> be entirely satisfactory.

Judgment reversed-and the petition dismissed.

The other judges concur.