128 Wash. 406 | Wash. | 1924
Lead Opinion
Both parties to this action have appealed from the judgment below, and for convenience they will be referred to throughout as plaintiffs and defendant, except as reference to some individual plaintiff may be necessary.
John W. Olmstead was an employee of the Henry McCleary Company, a corporation, engaged in the lumber and timber business, and in 1901 or 1902, by the investment of accumulations amounting to some $1,200, and perhaps by his earnings in part, he acquired certain stock in that company. Thereafter, about 1906, the Henry McCleary Timber Company was incorporated and succeeded the Henry McCleary Company. Olm-stead became the owner of 119% shares of the stock, of the par value of $11,912.50, out of its total capital of $250,000. The remainder of the capital stock was owned by Henry McCleary, 983 13/16 shares, George Osgood, a like amount, William McCleary, 298% shares, and the remainder in small amounts by others who were mostly employees of the company.
Olmstead died intestate in 1908, leaving surviving him his wife and three minor children. His estate consisted of this stock, an automobile afterwards ap
In 1910, nearly a year and a half after Mr. Olm-stead’s death, on petition of the widow, Julia K. Olm-stead, Henry McCleary was appointed administrator of the estate, duly qualified, and in August of that year he, jointly with Julia K. Olmstead, petitioned the court which had jurisdiction of the estate for an order for the sale of this stock. The petition sets out:
“That the entire estate, so far as known, consists of 119% shares of stock in the Henry McCleary Timber Company, which has been appraised at the sum of $23,825, and one Reo automobile, which has been appraised at the sum of $350; that said shares of stock constitute a minority interest and no dividends have ever been declared and it is not the policy of the company to declare dividends; that the petitioners believe it to be for the best interests of the estate and the heirs that said personal property be sold at either public or private sale as the court may consider best and that the proceeds of the sale be invested in some income producing property; that there are no funds on hand wherewith to pay the expenses of administration and it will be necessary to reduce part of the personalty to cash in any event.”
A hearing was had and an order made directing the stock to be sold at public auction on ten days’ notice. The notice was duly given and the stock sold to William McCleary at $200 per share, which was its appraised value. The sale was reported as being for cash, and was by the court confirmed on September 17, 1910. It appears that the actual steps taken to complete the sale
In January, 1911, the widow again petitioned the court for a partial distribution of the estate, again setting up the sale and its results, and in March, 1912, the administrator made his final report, due notice was given, a guardian ad litem for the minors was appointed, and after the hearing a decree of final distribution was entered in the probate proceedings on April 6,1912.
Mr. McCleary did not then, however, distribute the funds to the widow and children, but continued, as before, to hold the money, act as their man of business, send to the widow $100 per month, which he claims represented the interest at six per cent per annum on the credit still shown by the books of the Henry McCleary Timber Company, until by the payment to the widow of
There are many other facts and details involved, some of which will be mentioned as we proceed, and all of which ascertainable from the record, whether here mentioned or not have been considered.
The amended complaint, upon which the case was tried, charges both actual and constructive fraud on the part of the defendant in carrying through a pretended and colorable sale of the stock for his own benefit and purposes without the knowledge or consent of those beneficially interested. The trial court found
One of the minor children having died, the two remaining children succeeded to his interest, and to them each was granted judgment for $27,731.16, the aggregate of the two being the value of one-half of the stock at $1,000 per share. Julia K. Olmstead, the widow, was denied relief upon the ground that by her subsequent acts she had ratified the sale. Clifton E. Olmstead was still a minor when the suit was brought, and was represented throughout by Julia K. Olmstead, his guardian, but he became of age a few days before the final decree was entered, and the judgment in his favor is therein set forth in these words:
“It is further ordered, adjudged and decreed that the plaintiff Julia K. Olmstead, as guardian of the estate of Clifton E. Olmstead, a minor, and Clifton E. Olmstead, who since the institution of this suit has become of age, jointly have and recover of and against the defendant, Henry McCleary, a judgment in the sum of $27,731.16.”
The first question to be considered is raised by a motion on behalf of the plaintiffs to dismiss the defendant’s appeal, first, because of the supposed insufficiency of the notice of appeal, and second because of the supposed insufficiency of the appeal bond.
The notice of the appeal is entitled as is the complaint and all papers filed subsequently in the cause; does not name Clifton E. Olmstead individually as a plaintiff, and refers to him only by naming as one of the plaintiffs “Julia K. Olmstead as guardian of the estate of Clifton E. Olmstead, a minor,” and proceeds: ‘ ‘ To the plaintiffs above named: ’ ’ The point raised is that Clifton E. Olmstead, on attaining the age of
The statute, Rem. Comp. Stat., § 1719 [P. C. § 7293], does not specify the form of a notice of appeal, and provides that such a notice shall be served on the prevailing party or his attorney. The words “To the plaintiffs above named,” or any like caption, are not required and are mere surplusage. The notice was properly served upon the attorney who represented Clifton E. Olmstead as an individual after he became of age, as well as his guardian and all of the prevailing parties, and that was a compliance with the statute. In re Murphy’s Estate, 26 Wash. 222, 66 Pac. 424; Sipes v. Puget Sound Electric R. Co., 50 Wash. 585, 97 Pac. 723.
Whether or not the appeal bond was sufficient presents a far more difficult question. The statute, Rem. Comp. Stat., § 1721 [P. C. § 7295], provides that an appeal “shall become ineffectual for any purpose unless . . . an appeal bond to the adverse party . . .” be filed as therein specified. Plaintiffs rely on Robertson Mortgage Co. v. Thomas, 63 Wash. 316, 115 Pac. 312, and Crawford v. Seattle, Renton & Southern R. Co., 92 Wash. 670, 159 Pac. 782, where it was held that a party to the judgment, though not a party to the suit originally, is entitled to be served with notice of appeal, and therefore, it is argued, is entitled to be named in the bond; and also upon Den Bleyker v. King County,
The Mogelberg case, supra, presents a very different situation. There one of the defendants cross-complained against the other defendant. The cross-complaining defendant was exonerated from all liability to the plaintiff, and recovered a judgment against his co-defendant on his cross-complaint. The plaintiff likewise recovered judgment against the same defendant. The judgment debtor in attempting to appeal from both judgments gave a bond in favor of the plaintiff only, and it was there held that such bond was ineffectual to perfect his appeal from the judgment in favor of the cross-complaining defendant, but was sufficient to perfect the appeal from plaintiff’s judgment.
In the Salvino ease, supra, the contest was between two creditors of an insolvent as to the priority rights of their respective claims. On appeal the bond ran to the receiver of the insolvent company and not to the adverse party. Clearly these cases present situations where the adverse party was entirely without the protection of the bond, and upon affirmance of the judgments in either case the prevailing party could not have recovered upon the bond which was there given. So in the Den Bleyker case, supra, there were no sureties, the bond being by the judgment debtors only, and hence the prevailing party was without the security which the statute commands. The facts do not appear in the Sisson case beyond the statement that the bond was not given to the adverse party, and therefore we consider it likewise distinguishable, as will more fully appear as we proceed.
What is the judgment appealed from? It is entered in an action waged by a guardian, tried during the
At the most, the defect, if any, in the notice of appeal and in the appeal bond is of form only, affecting no substantial rights, and is therefore amendable under § 1734, Bern. Comp. Stat. [P. C. § 7319].
The motion to dismiss the appeal is denied.
Coming now to the merits of the case, the discussion may be shortened by saying that, after a painstaking perusal of the record, we are abundantly satisfied that the evidence fully supports the trial court in his view that no actual fraud has been proven. That leaves for consideration only the question of constructive fraud, which, if we apprehend the plaintiff’s position, is
(a) That the defendant, occupying a relationship of trust toward the widow and minor children, was bound to advise them for their best interests, even though his own interests were thereby adversely affected.
Assuming this to be a correct statement of his duty, the evidence, as clearly as that may be done after such a lapse of time, establishes that he did so. The defendant testified quite fully to talking over her affairs with Mrs. Olmstead from the beginning, and if this evidence be denied at all, such denial goes only to her now having no recollection whatever on the subject. What was the condition upon which advice should have been given? Here was a dependent widow with three minor children to support, having as her principal asset this small minority holding in a corporation in whose management she could have but little voice, and could not hope to control, which never had paid dividends, though prosperous so far, was not then in a position to declare dividends, whose settled and announced policy was against declaring dividends, and whose future was dependent upon conditions which no one could with any certainty foretell. Moreover, it was engaged in a business with a history of ups and downs, now a prosperous year or period of years, and then a period of stagnation, and perhaps loss. Who shall say that the defendant did not exercise his honest judgment, as a matter of law, in so advising and so acting as to remove the financial affairs of this widow and her children from the hazards of such a business, especially when the amount which could then be and was realized was sufficient to earn a comfortable livelihood for the dependent family without diminution of the principal.
(b) But it is urged that the sale was not in fact for cash, and there was fraud in so reporting it. We cannot so view the admitted facts. The transaction was wholly a banking one, and therefore a bookkeeping one, it is true; and yet if the Henry MeCleary Timber Company had in fact been a bank, and if William MeCleary had drawn his check or order on that bank for the amount of the purchase price, passed it to the defendant, and he in turn deposited it in the same bank, the same identical bookkeeping would have been required, and the same results exactly would have been obtained. It is not even contended that the proceeds of the sale were not at all times available for disbursement under the direction of the court, as much as though in actual legal tender in the administrator’s hands. The plaintiffs may not here complain that the Henry MeCleary Timber Company was not in fact and in law a bank. Their demand is against the defendant, and against him alone, and they, not being in any wise affected or injured by the acts of the corporation, cannot raise the question of its powers.
(c) William McCleary’s account with the corporation concerning this transaction was carried as William MeCleary, trustee, and it is said that there being no beneficiaries of the trust in existence at the time William MeCleary purchased the stock, there was no trust and the transaction is void. True, the testimony shows that William MeCleary purchased with the view of giving others the benefit of his bargain, and in part that such others failed to complete the transaction, but he was not then bound to make a resale. The prospective purchasers could not have compelled him to transfer the stock to them, nor could they have recovered damages for his failure to do so. There was no trust,
(d) Sale was made, it is said, without a sufficient showing of necessity, and without the minors being represented. It must be remembered that the stock was personal property the title to which vested in the administrator, and not realty the title to which vests in the heirs. We know!' of no rule of law, and none has been cited, which holds that a sale by an administrator, under order of the court, of personalty beyond actual needs is void, or even voidable, or that requires that the minor heirs shall be represented at the hearing therefor. These supposed irregularities, if such they be, are not such as to open the sale to collateral attack.
(e) That the sale was made for the benefit of the defendant to enable him to keep control of the corporation and parcel out the stock to trusted employees, who by becoming stockholders would be thereby more closely bound to the corporation and more loyal and efficient in its service. There is sufficient in the evidence to show that the defendant knew and approved of the final purchase of the stock by employees, but nothing to show that any other than a person already identified with the corporation would even consider such a purchase under the then conditions. It would be a violent presumption under such circumstances to presume that the defendant made the sale to effect the purpose indicated, and if presumptions, are to be indulged in, we must presume that he was actuated by a desire to obtain the best possible price for the stock and knew, as seems reasonable in the light of the testimony as to prior sales, that only by that means could the full appraised value be realized.
The cross-appeal by plaintiffs raises only the questions of the insufficiency of the amount awarded those who recovered by the judgment below, and the denial of any recovery to Julia K. Olmstead. Since we find that no cause of action exists, that disposes of these questions entirely.
The prayer of the amended complaint, upon which the case was tried, is for a full accounting as to the stock and of all moneys in the defendant’s hands belonging to the plaintiffs and is broad enough therefore to warrant a judgment for any undisbursed balance of the proceeds of the estate remaining in the hands of the defendant.
The judgment appealed from is therefore reversed with directions to enter a judgment only for such un-disbursed balance.
Dissenting Opinion
(dissenting) — While I agree that, on the merits, the appellant is entitled to succeed, I can not agree that he has given a proper bond on appeal, under the decision in Salvino v. Taylor Mill Co., 102 Wash. 507, 173 Pac. 433.