13 Or. 214 | Or. | 1886
The complaint filed by the plaintiff alleges, .in substance, the incorporation of the Rockville etc. Trading Company; the copartnership of the defendants; the assignment by said corporation, on January, 1881, of .all its property, including the claim sued on, to the plaintiff; the delivery by said corporation to the defendants of 21,127 pounds of wool to be sold on commission; the sale of said wool for $4,615.46, prior to December 15, 1880, by defendants; that the commissions, etc., all
“ That the wool alleged to have been shipped and deliv*217 ered (part to John. R. Foster and part to Foster & Robertson) was received by them, and that Foster & Robertson accounted for all the wool; but in doing so, and in rendering account of sales, they included therein as «.charge against said company the note of T. S. Lang in favor of John Foster for $1,271.93, which the defendants claim they had the right to do under an agreement with the° company, but the plaintiff denies that any such agreement was made with the company.”
By the terms of this stipulation, there was left for trial but one question : Whether the defendants had the right to deduct from the proceeds of sales in their hands the amount of the note given by Lang to Foster. The jury found for the plaintiff. '
The grounds of error alleged are in respect to certain, instructions given at the request of the plaintiff, and in refusing to give certain others asked by the defendants. As all these instructions were based upon the supposed effect of certain evidence, it is necessary to give the substance of it to understand the point, or at least the main point, of contention. The stockholders of the corporation were T. S. Lang, Mary Lang, his wife, James A. Varney, John R. Poor, and Charles E. Poor. The capital stock was $25,000, divided into 250 shares of $100' each. Of these T. S. Lang had 1 share ; his wife 49' shares; Varney 50 shares; and John R. Poor and his son Charles 150 shares. All the stockholders were directors of the company at that time, and Lang -was president of the board of directors, and Varney the secretary. It appears by the record that some time in November, 1880,. John R. Poor met T. S. Lang in the Dalles, and had a. conversation with him at the Umatilla House about selling their stock in the corporation ; and after a good deal, of negotiation arrived at an understanding, subject to-the approval of the other parties concerned, whereby the-
The plaintiff contended that the transaction was purely ..an individual matter between the parties, and in no way involving a corporate act, and in which the corporation was in no way concerned; and that its character as an individual transaction was not affected by the fact that ■some or all of the parties concerned were stockholders ■or directors of the corporation; nor by the further fact that the transaction on one side was to. secure the transfer of stock by one individual to another individual. Upon this theory of the transaction, as it is disclosed by •the evidence, the plaintiff based his instructions, which were given by the court and excepted to, and which, in nur judgment, apply the correct principles of the law to the case, and require no further consideration, unless the instruction asked for by the defendants and refused
“ If T. S. Lang and his wife transferred the stock held by them in the Rockville Wool Stock-raising and Trading Company to Sarah E. Poor, and said company, at a meeting of its board of directors, by resolution accepted such transfer for the benefit of said company, then they are chargeable with a knowledge of the contract under which said transfer was made, and the corporation could not keep the stock so received and refuse to perform the contract by which it procured the transfer to be made.”
Now, if T. S. Lang and his wife had transferred the stock held by them to the company, that might raise the question whether the company was authorized to assume the liability ; and if they were, which may be conceded, the ratification would be good. More, if Lang and his wife transferred to Sarah E. Poor for the benefit of the company, and the company accepted such transfer, then it may be said that the company is chargeable with a knowledge of the contract, etc. But there is no resolution of the company to this effect. The only resolution in the record having reference to this matter recites the fact that Lang and his wife sold their stock in the company to Sarah E. Poor, and the further fact that “ having no means to pay the debt against T. S. Lang,” etc., it is •“ hereby canceled.” But there is nothing in this which suggests that Sarah E. Poor took the transfer “ for the ■benefit of the company,” or any evidence that the corporation “ accepted ” a transfer of stock which had been made, not to it, but to Sarah E. Poor, who thereby became a stockholder. Nor is there anything to show that the company claimed, professed to own, or kept the stock. The facts show the stock did not belong to it, and there is nothing in the record inconsistent with this.