Steinfeld v. Nielsen

139 P. 879 | Ariz. | 1913

Lead Opinion

ROSS, J.

The appellant Steinfeld, although not an officer or director of the Nielsen Mining & Smelting Company, also known as the Silver Bell Copper Company, dominated the •company and dictated its business policy. His controlling and dominating influence and power over the business affairs of the mining company arose out of the fact that L. Zeekendorf •& Co., of Avhich he was the managing partner, and he owned and controlled a majority of the company’s stock and were represented on the board of directors by two of L. Zeckendorf & Co.’s employees, who were a majority of the hoard, and the further fact that the mining company was largely indebted to L. Zeckendorf & Co. for moneys and merchandise furnished it and to be furnished it in the progress of development and operation. For these reasons Steinfeld’s domination of the mining company was absolute. His will in the business affairs and the policies of the mining company was felt and followed. By refusing credit, he could stop operations. By legal proceedings to collect what was owing L. Zeckendorf & Co., he could take from the mining company most, if not all, of its assets, and by the exercise of his power over the board of directors he was regnant in its internal affairs.

Possessing such unlimited power over the mining company, he ought to be held to owe the same standard of conduct toward the stockholders of the company as is due from an officer or director. The general rule is that an officer or director may purchase the stock of his company from stockholders with the same freedom as a stranger, and, in so doing, the fact that he may be possessed of inside information as to the future plans and policies of his company is not permitted to militate against him, “and, so long as he remains silent and does not actively mislead the person with whom he deals, the transaction cannot be set aside for fraud.” Cook on Corporations, 5th ed., see. 320, p. 707; Crowell v. Jackson, 53 N. J. L. 656, 23 Atl. 426; Rothschild v. Memphis & Charleston R. R. Co., 113 Fed. 476, 51 C. C. A. 310; Gillet v. Bowen (C. C.), 23 Fed. 626; Walsh v. Goulden, 130 Mich. 531, 90 N. W. 406; Board of Commrs. v. Reynolds, 44 Ind. 509, 15 Am. Rep. 245; Haarstick v. Fox, 9 Utah, 110, 33 Pac. 251; Deaderick v. Wilson, 67 Tenn. (8 Baxt.) 108; 2 Story’s Eq., see. 1564; 4 Thompson on Corporations, 2d ed., sec. 4031. This rule has been applied by the courts and text-writers where the bare relation of the officer of the corporation and the stockholder was involved. But “if it were conceded, for the purpose of the argument, that the ordinary relations between directors and shareholders in a business corporation are not of such a fiduciary nature as to make it the duty of a director to disclose to a shareholder the general knowledge which he may possess regarding the value of the shares of the company before he purchases any from a shareholder, yet there are cases where, by reason of the special facts, such duty exists. The supreme courts of Kansas and of Georgia have held the relationship existed in the cases before those courts because of the special facts which took them out of the general rule, and that under these facts the director could not purchase from the shareholder his shares without informing him of the facts which affected their value. Stewart v. Harris, 69 Kan. 498, 77 Pac. 277 [105 Am. St. Rep. 178, 2 Ann. Cas. 873, 66 L. R. A. 261]; Oliver v. Oliver, 118 Ga. 362, 45 S. E. 232. The case before us is of the same general character.” Strong v. Repide, 213 U. S. 419, 431, 53 L. Ed. 853, 29 Sup. Ct. Rep. 521, 525.

“The special facts” referred to that took the StrongRepide case out of the general rule, succinctly stated, were: That Repide was a majority stockholder and director of a corporation owning some friar lands in the Philippine Islands. “He was not only a director, but he owned three-fourths of the shares of its stock, and was, at the time of the purchase of the stock, administrator general of the company, with large powers, and engaged in the negotiations which finally led to the sale of the company’s lands (together with all the other friar lands) to the government at a price which very greatly enhanced the value of the stock. He was the chief negotiator for the sale of the lands and was acting substantially as the agent of the shareholders of this company by reason of his ownership of the shares of stock in the corporation and by the acquiescence of all the other shareholders, and the negotiations were for the sale of the whole of the property of the company. By reason of such ownership and agency, and his participation as such owner and agent in the negotiations then going on, no one knew as well as he the exact condition of such negotiations. No one knew as well as he the probability of the sale of the lands to the government. No one knew as well as he the probable price that might be obtained, on such sale.” At the time Repide bought the Strong stock negotiations for the sale of the company’s lands were pending, and these negotiations were entirely in his hands, and a failure on his part to disclose these facts, the court held, amounted to fraud and deceit. We would be bound by that case if the facts in this case were the same. In that case Strong was not an officer of the company and had no part in its management, and the sale to the government was entirely in Repide’s charge and pending at the time he bought the Strong shares. Nielsen was not only a' stockholder in the Nielsen Mining & Smelting Company, but was. also a director. He was also the superintendent of the mines and smelter. In his official capacity he had a most intimate knowledge of the value of the mines and of the operation and production of the smelter. He knew, or should have known, the indebtedness of his company. He knew at the time of the shut-down that Steinfeld had already purchased the interest of some of the English claimants in the adjoining mining claims, and that he intended acquiring the title to all of the English group of claims. He was in possession of all of these facts on June 29, 1900, the date he entered into the contract with Steinfeld, selling his stock.

The property of the company was sold through the efforts of Steinfeld on May 20, 1903, to the Imperial Copper Company; no sale to this company nor anyone else was pending at the time Steinfeld bought the Nielsen stock, nor at the time of the shut-down. Nielsen knew that Steinfeld had been trying to sell, and that it was his purpose to sell if a purchaser could be found. Steinfeld’s letter of January 3, 1900, and the contract of sale to Steinfeld apprised Nielsen of Steinfeld’s purpose to sell. Under these circumstances, there were no “special facts” known to Steinfeld that were not also known to Nielsen.

The operation of the mines and smelter was suspended by Steinfeld confessedly for two reasons: (1) To acquire title to the English group of mining claims, of which purpose Nielsen had knowledge; and (2) to acquire the Nielsen stock and thereby dispense with his services as superintendent of the mines. At the time of the shut-down, all of Nielsen’s means consisted of his interest in this corporation. The corporation was heavily in debt, owing about $70,000. The debt, at the date of the organization of the Nielsen Mining & Smelting Company, was less than $23,000. Part of the increased indebtedness is accounted for in improvements on the mines and smelter and the payment of $10,000 on the optional contract of purchase of the Old Boot Mine.

In view of all these circumstances, or in any ease, can it be said that Steinfeld was guilty of fraud or coercion, as alleged in the complaint, in suspending the work at the mine for the purpose of acquiring the Nielsen stock and getting rid of the Nielsens, for the evidence shows that, if there was fraud or coercion, it consisted in that one act, emphasized by the statement of Steinfeld to Nielsen that, if he did not take the offer of Steinfeld, he would get nothing for his stock. This last statement, construed under the condition in which it was made, was not necessarily a threat, for it was a fact that the corporation was largely indebted and liable to be sued and its assets taken by creditors; and it was without means to meet the payments on its optional contract to purchase the mines, and a failure to make such payments subjected its principal asset—the mines—to be forfeited as well, also, as all previous payments. The embarrassing and precarious situation of financial inability to meet obligations due and coming due was not the creation of Steinfeld. It arose from an effort on the part of the corporation to acquire, develop and operate the mines—the very object of its creation. Steinfeld, through Zeckendorf & Co. by suit, could have taken the mines for the debt owing the latter without violating any duty he owed Nielsen, or he had it in his power to carry the Zeckendorf account, pay the installments on the purchase price of the mines, purchase the English group of mines, and negotiate a sale of the consolidated property, leaving the Nielsen stock as Nielsen’s, entitled to dividends on the whole selling price.

This the appellee claims was his duty. We do not believe that his duty to Nielsen required that he should use his personal credit and financial standing to augment the mining company’s resources or to pay its debts or to extend its credit.

The facts in Perry v. Pearson et al., 135 Ill. 218, 235, 25 N. E. 636, 641, are in many respects similar to the facts of this ease, and we quote from it language which we think applies here with especial force: “It is claimed that appellees made statements to Perry himself which had the effect of discouraging him and exciting his fears as to the future of the company. It was impossible for them to tell him anything about the company or its affairs or its prospects, which he did not know. The pecuniary liabilities of the company pressed as heavily upon them as upon him. If, when they stated the truth to him, he became depressed thereby, we cannot see that they are to blame. It is urged, however, that, by reason of the fact that Perry and the Pearsons were eostoekholders and codirectors in the company, there were confidential relations between them, such as exist between a trustee and cestui que trust, and that therefore appellant, as the cestui que trust, has the option to set the sale aside independently of the question whether it was fraudulent in fact or not. It is true that, in a certain sense, the directors of a corporation occupy the position of trustees toward the stockholders. As the value of the shares of the stockholders and their rights in connection therewith are affected by the conduct of the directors, a trust relation is created between them. The directors owe a fiduciary duty toward the stockholders in dealings which may affect the stock. 3 Pomeroy’s Equity Jurisprudence, sec. 1090. It would certainly be most inequitable to permit the directors of a corporation to so manage its business, or to so deal with its property, as to lessen the value of its stock for the purpose of purchasing such stock for themselves at a low figure. But in the present case the appellant was more than an ordinary stockholder; he was not only the owner of a majority of the stock, but was himself a director and the president of the corporation, intrusted with the control and direction of its business.”

It is complained that the price paid by Steinfeld for the Nielsen stock was inequitable and inadequate. Nielsen and Bewis were the owners of two unpatented mining claims located near or adjoining the Old Boot Mine, and Nielsen owned 300 shares of the Nielsen Mining & Smelting Company .•stock. Steinfeld would not buy the mines unless he could buy the stock; nor would he buy the stock without the mines. "While separate instruments were executed evidencing the sale of the mines and the stock, they were in fact but one transaction; and the consideration for the conveyances to Steinfeld was $2,000 cash at the date of sale, and the agreement to pay Nielsen $10,000 additional if realized from the net operations ■of the mine or upon a sale of the company’s property. The pecuniary liabilities of the company were heavy; the Old Boot Mine, its principal resource, was held under an optional sale .and liable to be forfeited for failure to make its payments of installments on the purchase price when due; and the -company was without.money or credit.

The trial court refused to find the value of the Nielsen stock at the time work was suspended at the mine or at the time that Steinfeld bought it. There was no proof in the case whatever showing that the stock had any value other than a speculative value. No dividends had been paid, and the company owed more when it ceased operations than when it began. After the operations were closed down in February, 1900, not a furnace was fired or a pound of ore produced. Steinfeld evidently concluded that the property would realize more from a sale than from operation, which is not infrequently the case. What might be realized in a sale of the property was, of course, problematical.

Steinfeld offered $2,000 cash and the above agreement, and, in view of the involved financial condition of the company, we cannot say that he was paying too little for what he got. Again we quote from Perry v. Pearson et al., supra (135 Ill. at pages 230, 228, 25 N. E. at pages 639, 638):

“But let it be admitted that appellant’s stock was sold for much less than it was worth. He made the sale with his eyes open. He seemed to be willing to part with his stock at a low figure rather than run the risk of being held liable for the debts of the company. No misrepresentations were made to him. He was well acquainted with the value of what he was selling, as were those who purchased from him. Whenever it appears that the parties knowingly and deliberately fixed upon any price, however great or however small, there is no occasion nor any reason for interference by courts, for owners have a right to sell property for what they please, and buyers have a right to pay what they please. 2 Pomeroy’s Equity Jurisprudence, see. 927, noté ‘ e, ’ and eases cited. ’ ’

“Mere inadequacy of price, unaccompanied by other inequitable incidents, will not justify a court of equity in setting aside a sale or contract. The cancellation will only be decreed where the inadequacy of price is so gross that it shocks the conscience and furnishes satisfactory and decisive evidence of fraud. 2 Pomeroy’s Equity Jurisprudence, secs. 927 and 928." Graffam v. Burgess, 117 U. S. 180, 29 L. Ed. 839, 6 Sup. Ct. Rep. 686; 9 Cyc. 367.

At the time that Steinfeld purchased the Nielsen stock, the assets of the Nielsen Mining & Smelting Company consisted of the Old Boot Mine and the machinery and equipment thereon. Subsequently Steinfeld, with his own means, purchased the English group of claims and in May, 1903, nearly three years after he had bought the Nielsen stock, sold the consolidated groups to the Imperial Copper Company for $515,000. Doubtless the added mining claims had the effect of increasing the value of the Nielsen stock. However, the amount received for a much enlarged property, sold some three years after and when the situation was materially changed, is no test or measure of the value of the Nielsen stock in June, 1900. If Steinfeld’s venture and risk had proved a failure, the loss would not have been suffered by Nielsen. The venture or speculation having been successfully floated by Steinfeld’s energy and at his risk, we think he is entitled to the fruits of his labor. It may be a fact that the Nielsens executed the contract to Steinfeld largely because of their straitened circumstances. This is not an anomalous condition of contracting parties. Indeed, in a large proportion of the transactions involving transfers of title in property, one of the parties is acting from pecuniary necessity. If the Nielsens were poor and hard pressed in money matters, it is not shown that Steinfeld contributed to it or that he was responsible for it. They yielded to the pressure of their situation and freely and voluntarily signed the contract of sale. ‘ ‘ Such an act as that of signing those instruments, under the circumstances disclosed in the record, must be regarded, both in equity and at law, as a voluntary act, as it was unattended by any act of violence or threat of any kind calculated in any degree to intimidate the party or to force the result, or to compel that consent which is the essence of every valid contract.” French v. Shoemaker, 14 Wall. 315, 20 L. Ed. 852.

The discharge of Nielsen as superintendent, whether by the mining company or by Steinfeld, is not shown to have been violative of any rights of Nielsen. Nor is it evident that by reason thereof he was in the least influenced to execute the contract of sale with' Steinfeld. Nor is it shown that his financial distress was more acute by reason of his discharge. Had the operations at the mine shown dividends or increase of value in the company’s assets, or had the company been able within itself to carry on development and operations, the appellee’s complaint that Nielsen was discharged as superintendent for the purpose of acquiring his stock might be justified and form the basis for equitable relief, especially if its effect was injurious to Nielsen. But, under the circumstances as they existed, no injury is shown. The fact that Steinfeld entertained the secret purpose of acquiring the Nielsen stock and thought that Nielsen’s discharge might facilitate his purpose could not have influenced Nielsen’s subsequent conduct in executing the contract of sale to Steinfeld. Undisclosed purposes and intentions as to future conduct or action of Steinfeld were not matters that Nielsen was entitled to know. The facts, as they existed at the time of the transactions, were within Nielsen’s knowledge. He was fully advised, and if he made a poor bargain, of which we are not convinced in view of all the circumstances at the time, he cannot now complain.

We think the trial court committed error in decreeing a rescission of the contract of June 29, 1900, and giving judgment in favor of the plaintiff for the 300 shares of stock, together with dividends thereon.

That judgment is reversed and the cause is remanded, with directions that judgment be entered for the defendant.

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Concurrence Opinion

FRANKLIN, C. J.

I concur. In the decision of this case it is important, as affecting the fiduciary relationship of the parties, to bear in mind the subject matter and character of the action. Its basis is a contract for the purchase of certain shares of stock in a corporation and an interest in certain mining claims. The contract was entered into by two stockholders of a corporation. At the time of the contract, Steinfeld was and had been a stockholder and a dominating influence in the affairs of the corporation. Nielsen was a stockholder and director, and had been, until a short time previous, very active in the conduct of the business of the corporation. The action is for rescission or undoing of the contract for the purchase of the stock. The action does not involve directly the conduct of either party with reference to the conduct of the business of the corporation, or the acquisition by either of them of any of the property of the corporation; in other words, it does not involve the relation of directors or officers of a corporation and the corporation itself and the stockholders; cases where such directors are, by virtue of a position of trust and confidence, prohibited from making contracts with themselves individually, from purchasing property from themselves, or selling to themselves, or from making a personal profit ont of their dealings with the corporate affairs and the like. Nor is it a case where a director or managing officer of a corporation, by virtue of fraudulent misrepresentations or concealments concerning the company’s affairs,, induces a person to purchase shares of the stock or enter into a contract for their purchase, and thereby sustain a loss. Neither does it involve the specific performance of a contract which, upon a review of the facts and the situation and condition of the parties, a court of equity in its discretion might refuse to lend its aid in the enforcement thereof. For a court of equity will very often refuse to decree specific performance under a state of facts, where, in a case under the same state of facts, it will refuse to order a rescission. This action is for the rescission of a contract fully performed, and in which contract the parties alone are concerned. The executrix of one of the parties, deceased, comes into a court of equity asking that the contract between Steinfeld and the deceased be set aside on the ground of fraud. The stress of the argument advanced is inadequacy of consideration. A court of equity looks upon inadequacy of consideration only as a mark of fraud or imposition, except, for instance, there be such inadequacy of price as that it must be impossible to state it to a man of common sense without an exclamation at its inequality. Only in such a case does a court of equity consider that a sufficient proof of fraud to set aside a conveyance. Cwynne v. Heaton, 1 Bro. Ch. 9.

The appellee dwells with emphasis upon the value of the stock and the conditions at the time the purchase price therefor was paid and the transfer made. But I think it .infinitely more important to a just view of the matter to consider the situation of the parties and the value of the stock at the time the contract for its purchase was made. When we take into consideration the situation of the parties, the condition of the property of the corporation, and the value of the Nielsen stock at the time of the contract for its purchase, and the relative capacities of Steinfeld and Nielsen to render the stock of any value, I cannot escape the conviction that, at the time of making the contract, Steinfeld offered a very fair price indeed for the stock. From a fair consideration of the evidence, I am unable but to conclude that the only means whereby the stock would become of any value was by a sale of the mines of the corporation consolidated with the adjoining mines acquired by Steinfeld with his own funds. The evidence discloses that the sale thereof, negotiated by Steinfeld some years afterward, was the means which gave value to the stock.

Steinfeld was sharp, shrewd and alert, if you please. ■ After purchasing the Nielsen stock he was on the lookout for a profitable deal. By his business ability and financial standing and connections, he was enabled to and did make a sale of the consolidated property at a handsome figure. By making the sale, the burdens of the corporation were lifted, and from straitened circumstances it emerged opulent and its stock thereby became valuable. This was due to the efforts of Steinfeld, and by his ingenuity, industry and financial ability it was brought about. That the stock was purchased at a low price and subsequently, by the efforts of Steinfeld, it was made very valuable does not seem to me grounds for undoing the purchase of the stock and give all the benefit of the deal to the estate of Nielsen. However much as a matter of sentiment it may be desired to subtract from the rich and give thereof to those less fortunate in the ability to acquire, justice is imperative, and it is the stern duty of the court to close its eyes to sentiment and proclaim and preserve the rights of all under the law with equality, and without consideration of the wealth or poverty of the parties to influence its judgment. For, as Epictetus observed, “If you wish to make your judgments just, regard not any of those who are parties to the suit, nor those who plead in it, but regard justice itself.”

Mr. Justice DANIEL in the case of Eyre v. Potter, 15 How. (U. S.), at page 59, 14 L. Ed. 592, in giving the opinion of the court, said: “The parties, if competent to contract and willing to contract, were the only proper judges of the motive or consideration operating upon them, and it would be productive of the worst consequences if under pretexts, however specious, interests or dispositions subsequently arising could be made to bear upon acts deliberately performed, and which had become the foundation of important rights in others. Mere inadequacy of price, or any other inequality in a bargain, we are told, is not to be understood as constituting per se a ground to avoid a bargain in equity, for courts of equity, as well as courts of law, act upon the ground that every person who is not, from his peculiar condition or circumstances, under disability is entitled to dispose of his property in such manner and upon such terms as he chooses; and whether his bargains are wise and discreet or otherwise, or profitable or unprofitable, are considerations not for courts of justice, but for the party himself to deliberate upon. Vide Story’s Equity, see. 244”—and cases cited.

Courts will refuse to order the rescission or undoing of a contract on the ground of fraud unless the proof of the fraud is clear and decisive, and the facts before us do not present such a case. The facts of this case, as a basis for the relief sought in this action, do not bring Steinfeld within the sphere of a fiduciary relation where equity would measure with jealous care his conduct as that of a trustee. Neither does the ease present those special or peculiar facts by reason of which equity would regard him as a trustee under a qualification, or, as the books have it, a quasi trustee, or a trustee sub modo. On consideration of the adjudicated cases, where a person under the special facts in the ease is characterized as a quasi trustee or trustee sub modo, it seems to me a distinction without a difference, more an expression of form than a matter of substance, for such a person, under the special facts, is held to all the duties and obligations which the relation of trustee enjoins. To decree a rescission of the contract, under the facts of this case, as we find them, would indeed be extending equity too far, and it is said in the legal maxim that nothing is so unjust as to extend equity too far. Nihil iniquius quam aequitatem nimis intendere. It would be regarding the parties to the suit and nqt the justice of the case.

The true perspective of this case is had by viewing the contract of the parties for the sale and purchase of the stock in the light of the circumstances and conditions which surrounded the making, and not in the light of subsequent developments. Though, in the light of subsequent developments, it must be admitted that appellee made an improvident deal and got a very poor bargain, nevertheless, under the facts presented, it cannot in equity and good conscience be held that appellant should suffer by reason thereof.

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Dissenting Opinion

CUNNINGHAM, J.,

Dissenting.—I sincerely regret that I cannot agree with the conclusion reached by the other members of this court in this cause. I fully realize that a dissenting opinion establishes no legal principle, but it is a consolation to the dissenter and a medium of expressing his personal views in which he alone is interested—a kind of shady avenue leading to an imaginary goal of personal vanity. With this understanding of my reasons for presenting my views of this cause, I will not endeavor to more than state wherein I principally differ from the other members of the court, with few reasons given in support of my views, I will make no general statement of the facts, but will rest upon the statement of facts in the principal opinion.

The point upon which I differ from the other members of the court arises upon the effect given to the transaction by which the shares of stock were transferred by Nielsen to Steinfeld, and particularly the effect to be given to the instrument bearing date June 29, 1900, by the terms of which Steinfeld and the Nielsen Mining & Smelting Company on its face promised to pay to the Nielsens, upon certain conditions, the sum of $10,000. The majority of the court, treating the entire transaction as an absolute sale of the stock with the other property transferred at that time, gave no effect to the above-mentioned instrument other than a promise to pay a specific sum. I think that instrument should be given the effect of a declaration of trust and treated as such limiting the rights of Steinfeld in the title to the stock acquired by the bill of sale given to him by Nielsen and wife of the same date. The instrument recites the previous transactions as a consideration for its execution, recognizes that the Nielsens have fur1 ther equities in the stock upon the happening of one of two contingencies, viz., a profitable operation of the corporate properties or a sale of the properties. An equity existed until the happening of one or the other of the conditions. Steinfeld held the stock subject to this equity in the Nielsens. The Nielsens would be benefited by the sale of the corporate properties. Steinfeld held the legal title, with complete control over the shares of stock. In the light of the subsequent sale of the corporate properties, Steinfeld held this stock for the designated purpose of facilitating that sale. The $10,000 was to be paid out of the accumulated profits from operating the properties, if operated at a profit, or out of the proceeds of the sale of the corporate properties. I think no other fair construction could be placed upon the instrument under consideration. It is clear, then, that by the entire transaction we have a designated beneficiary, the Nielsens,- a designated trustee, Steinfeld, who is not the beneficia^; property sufficiently identified to enable title thereto to pass to the trustee; and the actual delivery and legal assignment of that property to the trustee, with the intention of passing legal title thereto to him as trustee. We therefore have a transaction presenting all the elements of an express trust created in the shares of stock. Brown v. Spohr, 87 App. Div. 522, 84 N. Y. Supp. 995; Martin v. Funk, 75 N. Y. 134, 31 Am. Rep. 446; Young v. Young, 80 N. Y. 422, 36 Am. Rep. 634; Sullivan v. Sullivan, 161 N. Y. 554, 56 N. E. 116; Matson v. Abbey, 70 Hun (N. Y.), 475, 24 N. Y. Supp. 284.

A trust is an equitable obligation, either express or implied, resting upon a person by reason of a confidence reposed in him to apply or deal with the property for the benefit of some other person or for the benefit of himself and another or others, according to such confidence. McCreary v. Gewinner, 103 Ga. 528, 29 S. E. 960, 963. As further defined, a trust arises “where there are rights, titles and interests in property distinct from legal ownership. In such cases the legal title, in the eye of the law, carries with it to the holder absolute dominion; but behind it lie beneficial rights and interests in the same property belonging to another. These rights, to the extent to which they exist, are a charge upon the property and constitute an equity which a court of equity will protect and enforce whenever its aid for that purpose is properly invoked.’.’ Seymour v. Freer, 75 U. S. (8 Wall.) 202, 19 L. Ed. 306; Crosby v. Colton, 5 Tex. Civ. App. 583, 24 S. W. 343.

We find that the trustee received, as apportioned to that stock, $33,300, a sum far in excess of the sum mentioned to be paid by him to the Nielsens on condition of a sale of the property. This sum was not a profit but a division of the assets of the corporation and a diminution of the capital of the corporation which the stock represented. When this sum reached the possession of the trustee, he held it upon the same trusts that he held the stock, of which it was a part of the value. Steinfeld then held the money, together with the stock, as representing the full value of the trust property. To say that he could discharge his trust by paying to the beneficiaries a part of the money so received by him, and thereby acquire a perfect title to the shares of stock and the balance of the money so acquired, all relieved from the trust, would permit him, as trustee, to gain a personal advantage or profit from his office or position of trustee, which no court of equity will permit. 1 Perry on Trusts, 6th ed., sec. 427.

If it be contended that Steínféld only declared that he would pay $10,000 of the sum received by him from the proceeds of a sale of the corporate properties, and therefore all the beneficial interest the Nielsens had in the property extended to that sum alone, and that Steinfeld took the beneficial, as well as the legal, interest in such balance, that contention is foreclosed by the general rule, viz.: “If, upon a conveyance, devise or bequest, a trust is declared of part of the estate only, or the purposes of the trust do not exhaust the whole beneficial interest, the trust in the remaining part or interest will result to the settlor or his heirs, for the reason that a declaration of trust as to part is considered sufficient evidence that the settlor did not intend the donee to take the beneficial interest in the whole, and that the creation of the trust was the sole object of the transaction.” 1 Perry on Trusts, 6th ed., see. 152, p. 240; 3 Pomeroy’s Equity, 3d ed., see. 1034; 39 Cyc. 244, 4 cases cited in note 6.

To permit the trustee to require the beneficiary to release him from all demands, under the circumstances disclosed, would amount to permitting him to make a very large profit from his office, which cannot be allowed. 1 Perry on Trusts, 6th ed., sec. 427. The attempted release upon receipt of the $10,000 executed by Mrs. Nielsen has no other effect than a simple receipt for that sum. 2 Parsons on Contracts, 9th ed., 657, and note “u” on page 658.

An examination of the complaint and the prayer for relief will disclose sufficient authority to warrant an affirmance of the judgment upon the theory of a trust relation.

Por these reasons I think the judgment of the lower court was proper and in full accord with law and equity.

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Rehearing

ON MOTION FOE EEHEABING.

(Filed April 16, 1914.)

FRANKLIN, O. J.

One who is familiar with the delightful comedies of Moliere cannot fail to remember his faculty to imbue in great degree farce and burlesque with the true spirit of refined comedy. In one instance he depicts with rare delicacy and humor the situation of two doctors; a Doctor Tant-mieux (so much the better), and a Doctor Tant-pis (so much the worse). Like unto a dialogue between hope on its feet and despair taking to its bed, these doctors were expected never to agree; nay, they never did nor could agree. The theater of this appeal presents a situation curious too, in that the appellant and the appellee cannot agree on anything or in any particular. They differ about the law, about the facts, on the opinion of this court in the instant case, on the language and effect of former decisions of this court, on the jurisdiction of this court, on the procedure governing its deliberations, and the scope and extent of, and the limitations upon, its power to review and pronounce judgment. The cause in its progress toward a final determination of the rights of the parties has had a varied career, and not without its vicissitudes, which have, perhaps, been more common to it than attends ordinarily the passage of litigation. The action was commenced in 1905, and its progress has been delineated in the principal opinion. It is sufficient here to state that the judgment of the trial court, in favor of the appellee, has, on appeal, and on a consideration by the appellate court of the law and the facts, been held both by the supreme court of the territory and the supreme court of this state to be erroneous. A rehearing of the case was asked in the supreme court of the territory and denied. On appeal to the supreme court of the United States, that court, ‘! considering the whole situation,” treated the ease upon the theory that the territorial supreme court committed reversible error in adopting the findings of fact made by the trial court, and in not certifying to the supreme court of the United States findings of fact proceeding from its own conscience as required by the federal statute.

From the judgment of this court the appellee has asked for a rehearing. The motion for rehearing was filed February 10, 1913, and on August 27,1913, an amended motion for a rehearing was filed which is inadvertently stated to have been done by leave of this court; but, as no objection has been made by appellant on that score, we shall in this instance consider the amended motion filed by leave granted. Under the rule an amended motion for rehearing may not be filed without leave of the court. The court has indulged counsel on both sides in the filing of many briefs on the one side in support of the motion and on the other side in objection to it; the last brief having been filed January 23, 1914. The briefs present a painstaking essay to spare no point which might affect the decision of the cause, and able and skillful efforts to enlighten the court in every possible way. As we have said, there is an absolute lack of harmony between the parties in every matter and in every particular of the matter. Nothing but a knitting up by the appellee and a raveling out by the appellant, and no progress is or will be discernible whatever unless we are capable of eliciting from the sea of things the fractions which are cardinal. Unless we are capable of doing this, the opinion will become one long drawn out. This task, for the sake of brevity, we must apply ourselves to, and all others omit.

The opinion of the supreme court of the state in this cause was filed on January 27, 1913, and in the amended motion for a rehearing filed by appellee more than six months thereafter a matter is for the first time suggested affecting the jurisdiction of both the territorial supreme court and this court on the appeal. It is asserted that the notice of appeal and the bond on appeal are insufficient to give this court jurisdiction of the appeal.

Paragraph 1493 of the Revised Statutes of Arizona of 1901 provides: An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment or order is rendered by appellant giving notice of appeal in open court, which shall be noted on the docket and entered of record, and by filing with the clerk an appeal bond or affidavit in lieu thereof, as hereinbefore provided, during the term or within twenty days after the expiration of the term.

Within the time prescribed by the statute, the appellant gave notice of appeal in open court, which was entered of record in language as follows: “Come now the defendants herein and except to the ruling of the court in rendering a judgment in favor of the plaintiff and in overruling their motion for a new trial herein, and give notice of appeal to the supreme court of the territory.” The bond on appeal describes the judgment and recites an appeal from the judgment, but does not recite an appeal from the order overruling the motion for a new trial. The language of the minute entry indicates beyond the peradventure of a doubt that it was the intention of the appellant to take an appeal from both the judgment and the order overruling the motion for a new trial. The notice recites the judgment and order and excepts to the ruling of the court, and gives notice of appeal to the supreme court of the territory. The ruling excepted to embraced both the judgment and order overruling the motion for a new trial.

Analyzing the notice hypercritically, we think it evident that the notice is a sufficient taking of the appeal from the judgment and the order.

In perfecting such appeal the bond did not recite the order overruling the motion for a new trial, but was limited to the judgment. The appeal is taken by giving the notice; it is perfected by giving the bond. Does the failure of the bond to recite the order overruling the motion for a new trial destroy the jurisdiction of this court on the appeal, or does it merely affect its jurisdiction? In other words, if this court has jurisdiction of the appeal, to what extent may the exercise of that jurisdiction go in its disposal? We must note this with some care, though strive to do it compendiously that reproach may not argue a deficiency of perception as to what the pronouncements of this court have been on this subject.

In the Revised Statutes of 1887, the chapter on appeals and writs of error provided for hut one appeal, to wit, an appeal from the judgment; only one writ of error, to wit, from the judgment. Paragraph 846 says: ‘ ‘ An appeal or writ of error may be taken to the supreme court from any final judgment of the district court rendered in civil cases.” The appellate’jurisdiction of the court was limited to final judgments.- But on appeal from a final judgment, the exercise of that jurisdiction was prescribed, the scope and power of its review indicated. The supreme court shall have jurisdiction to review upon appeal, or other proceedings provided by law. This is the language of paragraph 593, Revised Statutes of 1887. The statute then proceeds to enumerate the particulars and indicates the extent of the exercise of its jurisdiction or scope of its power of review on appeal from the judgment, which by recital includes the power or jurisdiction to review an order granting or refusing a new trial, sustaining or overruling a demurrer, or affecting a substantial right in an action or proceeding. The appeal must be from the judgment, and no provision is made for direct appeal from the order, but if from the judgment, the power of review is extended to and embraced the order.

Let us carefully note the language used in the revision of 1901. The wording is significant. The first part of paragraph 1493, Revised Statutes of 1901, is identical with paragraph 846, Revised Statutes of 1887. Paragraph 1493, supra, reads: “An appeal or writ of error may be taken to the supreme court from any final judgment of the district court rendered in civil cases, and from any of the orders mentioned in section 1214, which the supreme court has jurisdiction to review.” The last part of the paragraph just quoted, which was added by the revision of 1901 to the statute of 1887, has a most important bearing in considering what was the purpose and intention of the legislature in thus ingrafting such language on that of the earlier statutory expression. That the language was used advisedly we are persuaded, and that its purpose is clear we are convinced.

Reconnoitering on the statute fields of 1887 and 1901, it does not require a glass to see that there is but one appeal, but one writ of error, contemplated and provided. Under the statutes of 1887 the appeal was from the judgment, and the extent of the court’s power to review on such appeal was provided by the statute. Under the statutes of 1901, there is an appeal from the judgment and from any of the orders mentioned in section 1214, which the supreme court has jurisdiction to review. The extent of the review permitted on such appeal is also indicated in the statute; but, unlike the statute of 1887, the statute of 1901 places the extent of our power to review largely within the control of the party appealing. The appeal is from the judgment and from any of the orders mentioned. Net from any of the orders mentioned without an appeal from the judgment, but from the judgment and any of the orders are the words of the law. The appeal may be taken directly from the judgment and any of the orders, but it may not be taken directly from any of the orders mentioned independently of the judgment. In other words, there is given the right of direct appeal from the final judgment and any of the orders mentioned, but not the right of direct appeal separately and apart and independent of an appeal from the judgment. The views expressed are emphasized by a scrutiny of the method prescribed for taking and perfecting the appeal under each of the statutes noticed. They are alike as two peas, the method when the appeal was from the final judgment only, and the method when the appeal was taken from the final judgment and any of the orders mentioned. The notice of appeal is the same, the cost bond is the same, the stay -bond is the same. No change made in taking and perfecting either the appeal or the writ of error. The important change, however, is that the revision of 1901 placed it largely within the control of the party appealing to fix the scope of the appeal; that is to say, the extent to which the court in a given case may exercise its jurisdiction to review. By taking and perfecting the appeal from the judgment only, our right of review was restricted to the judgment-roll and any intermediate order involving the merits and, necessarily, affecting the judgment. The appeal from the judgment only did not destroy the jurisdiction of this court, but only limited the exercise of its jurisdiction by confining the scope of its right of review. If the appeal was taken and perfected from the judgment and from the order overruling the motion for a new trial, the right of review to that extent was thereby enlarged, and so on as the' appeal from the judgment would embrace any other appealable order. In fine, the appellant could restrict us to a review of the judgment-roll, and the intermediate orders, and he could also enlarge the right of review as he extended the scope of his appeal to embrace not only the final judgment, but any other appealable order that the issues on his appeal might require to be reviewed. In no case has this court even hinted that the failure to appeal from the judgment and order denying the motion for a new trial destroyed the jurisdiction if the appeal was taken and perfected from the judgment only. In each of the following cases the appeal was taken and perfected from the judgment only: Arizona Eastern R. Co. v. Globe Hardware Co., 14 Ariz. 397, 129 Pac. 1104; Miami Copper Co. v. Strohl, 14 Ariz. 410. 130 Pac. 605; Van Dyke v. Cordova Copper Co., 14 Ariz. 499, 132 Pac. 94; Thomas v. Bartleson, 14 Ariz. 513, 131 Pac. 973. In these cases we held that the court had jurisdiction of the appeal, but that the exercise of that jurisdiction was restricted in the scope or extent of our power to review. Under the Revised Statutes of 1901, we have never taken jurisdiction of an appeal from an order independent of an appeal from the judgment, and we have never held that an appeal from the judgment only was fatal to the appeal. What is the situation of the instant case? The appellant gave notice of appeal from the judgment and from the order denying the motion for a new trial. The appeal was perfected, however, by giving a bond reciting an appeal from the judgment. Under the Laws of 1901, as construed by this court in the eases supra, the appellant by his method of perfecting the appeal restricted our right of review to the judgment-roll and such intermediate orders as involved the merits and necessarily affected the judgment.

But a change has come over the appellate procedure. Probably at the suggestion of this court in the case of Miami Copper Co. v. Strohl, supra, the legislative authority has yielded to the advice of this tribunal and has attempted a phrasing of the appellate procedure that will do away with the apparent technicalities that beset us in that case and limited the right <of review on the record as there presented.

On October 1, 1913, Senate Bill No. 108, entitled “An act to provide for the review of judgments and orders of superior courts of the state of Arizona, and the practice and procedure in the supreme court upon such review,” became the law. The act contained an unlimited and unqualified express repeal of all acts and parts of acts in conflict with its provisions. Section 6 of the act is as follows: “Upon appeal from a final judgment the court shall review all orders and rulings made by the court below, which are assigned as error, whether a motion for a new trial is made or not. If a motion for a new trial is made and denied, the court may, on appeal from the final judgment, review the action of the court below in denying the motion, though no appeal be taken from the order denying the motion for a new trial; provided, that on appeal from a final judgment the supreme court shall not consider the sufficiency of the evidence to sustain a verdict or judgment in an action tried before a jury unless a motion for a new trial shall have been made.” (Sec. 1231, Rev. Stats. 1913, Civil Code.)

The act is applicable to judgments of the district courts, for such judgments are now the judgments of the superior courts. Article 22, section 7, of the Constitution, reads: “The records, papers, and proceedings of said district court, and other property pertaining thereto, shall pass into the jurisdiction and possession of the superior court of such county”— the evident purpose of this provision being to establish the judgments rendered by the district court prior to statehood as the judgments of the superior court. A similar provision of the law was before the court in the case of Merchants’ Bank v. Braithwaite, 7 N. D. 358, 66 Am. St. Rep. 653, 75 N. W. 224. Chief Justice CORLISS said: “By this section the people speaking through their fundamental law, have, with the assent of Congress, vested jurisdiction over judgments of the territorial district courts, in the proper state district court, and the judgments were thereafter as much judgments of the state district court as though they had been rendered by such courts.”

Recognizing the far-reaching effect of an unconditional repeal, the legislature enacted a section (5560) which went into effect at the same time as Senate Bill No. 108. It reads: “No action or proceeding commenced before any repealing act takes effect and no right accrued is affected by the provisions of such act, but proceedings therein must conform to the requirements of the acts passed at the same session of the legislature so far as such last-mentioned acts are applicable.” This seems to be an emphatic expression of the legislative intent that the provisions of act No. 108 should govern this court in reviewing pending appeals. Such intent becomes more obvious when it is considered that the law was enacted at the suggestion of this court that the apparent technicalities in the. law should be expunged, to the end that this court might not be constrained to render decisions as the result of a restricted power of review. That the removal of such restrictions would enable it to proceed and render its decisions upon the merits of the causes presented, unencumbered with those considerations which probably appeared somewhat trifling, but which involved us in an obedience to the will of the law—in a recognition and application of the law as it is written. Having determined that there is but one appeal under the laws of 1901, and that the method of taking and perfecting such appeal affects the jurisdiction of this court—in other words, enlarges or circumscribes our power to hear and determine the case on the record as presented—the crux of the present motion for a rehearing lies in an answer to this question : Has the appellee a vested right in the method of taking and perfecting an appeal as it existed when the judgment at bar was given? An answer to this question is a solution of the problem presented.

In the ease of Pearsall v. Great Northern Ry., 161 U. S., at page 673, 16 Sup. Ct. Rep., at page 713, 40 L. Ed. 838, quoting Mr. Justice COOLEY, it is said: “Rights are vested, in contradistinction to being expectant or contingent. They are vested, when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. They are expectant, when they depend upon the continued existence of the present condition of things until the happening of some future event. They are contingent, when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting. ’ ’

A “vested right” is defined to be an immediate fixed right to present or future enjoyment, or where the interest does not depend on a period, or an event, that is uncertain. Clark v. McCreary, 20 Miss. (12 Smedes & M.) 353; Oriental Bank v. Freeze, 18 Me. 109, 36 Am. Dec. 701; Edworthy v. Iowa, 114 Iowa, 220, 86 N. W. 315; Gladney v. Sydnor, 172 Mo. 318, 95 Am. St. Rep. 517, 60 L. R. A. 880, 72 S. W. 554.

After this judgment was rendered, a motion for a new trial was made, giving the lower court opportunity to correct any error it may have made. The motion was overruled. At that time the right of appeal existed. An appeal was taken and perfected. By the method pursued in taking and perfecting the appeal, however, we were restricted in our review of the record. The appellee couid not have a vested right in the judgment while the right of appeal existed, and so long as the time for appeal had not expired. The appellee could never acquire a vested right in the judgment so long as it was subject to the decision and determination of the appellate court. On the appeal the judgment of the trial court was declared to be erroneous by the territorial supreme court and again by the supreme court of the state. Having determined that under the law there was but one appeal, to wit, an appeal from the judgment or an appeal from the judgment and order or orders, and an appeal having been taken and perfected from the judgment, but not including the order, thereby not destroying our jurisdiction, but restricting the scope of review, and the law now removing that restriction and broadening the scope of review to include the order, the right of the appellee to have that part of the controversy concerning the order foreclosed is in no sense a vested right. The legislature is not precluded from enacting a law to broaden the scope of our review upon the appeal to include the order. The appellee can have no vested right in a matter of procedure or in the method and mode by which a record on appeal is enlarged or restricted for presentation to the appellate court. Andrade v. Andrade, 14 Ariz. 379, 128 Pac. 813; Johnson v. Semple, 31 Iowa, 50; Sumner v. Miller, 64 N. C. 689; Blonde v. Menominee Bay Shore Lumber Co., 106 Wis. 540, 82 N. W. 553; De Cordova v. Galveston, 4 Tex. 470; Willard v. Harvey, 24 N. H. 344; Bank v. Miller, 145 Ala. 237, 40 South. 513; Buck v. Canty, 162 Cal. 226, 121 Pac. 924; Clark v. Railroad, 219 Mo. 524, 118 S. W. 40. The appellee can have no vested right in preventing the law-making power from changing the mode and method of review. “If a statute providing a remedy is repealed while proceedings are pending, such proceedings will be thereby determined, am less the legislature shall otherwise provide, and, if it be amended instead of repealed, the judgment pronounced in ■such proceedings must be according "to the law as it then stands.” Cooley’s Constitutional Limitations, 7th ed., p. 516.

In Cassard v. Tracy, 52 La. Ann. 835, 49 L. R. A. 272, 282, 27 South. 368, will be found a learned and exhaustive consideration of this matter. The court says in the opinion: •“The first question is as to the effect of a suspensive appeal ■upon the judgment appealed from. The Code of Practice declares that a judgment from which a suspensive appeal has been taken cannot be executed. Code Prac., art. 575. That same is not a final and definitive judgment. The very object ■of the appeal is to keep the controversy open, obtain a review ■of the law and evidence upon which same is predicated, and, if possible, to obtain a different decree in the appellate court. The effect of an appeal was very thoroughly considered in the case of Beaird v. Russ, 34 La. Ann. 315. A judgment which cannot be executed, and which may be reversed on appeal, cannot certainly possess any value as a piece of property, inasmuch as the title is defeasible and conditional. The very object of taking a suspensive appeal is to prevent the decree having any effect, and to prevent its execution. This being the case, it is not readily perceivable upon what ground the argument is predicated that a law enacted during the interim of the suspensive appeal would have the effect of impairing the right of the judgment creditor; the right being defeasible and conditional. . . . The plaintiff ’s right to the judgment necessarily depended upon its affirmance in the appellate court; for, if same should be reversed in the court of appeals, or by this court in reviewing the same, there would be no property in it at all. The right of property in a judgment of the district court, suspensively appealed from, would be necessarily extinguished by its reversal.”

It is only after existing remedies have been exhausted, and rights have become permanently vested, that interference with the mere remedy is prohibited. Smeaton v. Austin et al., 82 Wis. 76, 51 N. W. 1090; Lovell v. Davis, 52 Mo. App. 342; Vance et al. v. Rankin et al., 194 Ill. 625, 88 Am. St. Rep. 173, 62 N. E. 807; 1 Haynes on New Trial and Appeal, Rev. ed., sec. 9; 3 Cyc. 407.

By the later decisions of Oklahoma, notably the case of Independent Oil Co. v. Beacham, 31 Okl. 384, 120 Pac. 969, the supreme court of that state, having under consideration provisions of the Constitution similar to section 1 and section 2 of article 22 of the Constitution of Arizona, drew a distinction between rights existing at the time of statehood and not in suit and actions in suit pending at the time of statehood; that as to the latter the procedure involved was within the protection of the Constitution. In the case of Andrade, v. Andrade, supra, we had occasion to cite the Beacham case in support of the rule that ‘‘no person has a vested right in any particular mode of procedure, and if,, before the trial of the cause, a new law of procedure goes into effect, it governs, unless the statute provides otherwise.” We did not yield to the test applied in that case, which was. whether the suit was pending or not pending at the time of the admission of the state; hut following the quotation from that opinion, we did cite Cusic v. Douglas, 3 Kan. 123, 87 Am. Dec. 458, Kelly v. Larkin, 47 Cal. 58, and other cases where the new procedure was held applicable to pending eases as well as rights existing but not in suit. The construction given by the supreme court of Oklahoma was, perhaps, impelled by the unique situation of two territories, the Indian Territory and Oklahoma Territory, each with separate and distinct laws, and which separate territorial governments were molded into one sovereignty under statehood, a situation peculiar to that jurisdiction, but not existing here. In the Beacham case the Oklahoma court, departed from an earlier construction which included both existing rights and pending actions, and limited the protection of the constitutional provision to actions pending at the time of statehood, but denying its protection in matters of procedure to rights existing at statehood and not in suit. Pending cases, in all probability, in most instances had been disposed of, and had not the court departed from its earlier decisions there would have been fastened upon Oklahoma a dual system of procedure to plague the courts and litigants for many years to come with confusions and embarrassments in the administration of the law. Further than this, we do not read the Oklahoma decisions as denying to the legislature the' power to change the law of procedure governing actions pending. The broad general scheme of sections 1 and 2 of article 22 of our Constitution is to preserve rights, actions, contracts, claims, etc..,, that no abruptness might occur in the change from a territory to a state, that the administration of the law should proceed unaffected by any change in the form of government, that the change should in no wise affect existing rights; not that new laws may not be enacted affecting or regulating the remedy for the enforcement of those rights.

We think that Senate Bill No. 108, therefore, governs us in the scope of our review on appeals pending. The appellant had the right of appeal and exercised the right, and the •appellee had no vested right in having the mode of taking the •appeal, or the scope of our review on the appeal remain as it was when the judgment was rendered. The construction we have given is favorable to the remedy; it gives us the power to fully review the ease upon its merits and do justice as the law and the facts require. Such a construction denies the •appellee no right and should he given to the act.

We are satisfied the judgment of this court is correct, and it would be to no purpose to grant the rehearing and thereupon render the same judgment. ■ The desired end is accomplished by denying the motion and letting the judgment stand.

The motion for a rehearing is denied.

ROSS, J., concurs.

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Dissenting Opinion

CUNNINGHAM, J.,

Dissenting.—Senate Bill No. 108 was •approved April 1, 1913, and became effective on October 1, 1913. The judgment by this court was entered on January '27, 1913. The scope of review at the time this court had this •cause before it for that purpose was limited to a review of the judgment-roll only. Arizona Eastern R. Co. v. Globe Hardware Co., 14 Ariz. 397, 129 Pac. 1104; Miami Copper Co. v. Strohl, 14 Ariz. 410, 130 Pac. 605; Van Dyke v. Cordova Copper Co., 14 Ariz. 499, 132 Pac. 94; Thomas v. Bartleson, 14 Ariz. 513, 131 Pac. 973.

If it be conceded that the provisions of Senate Bill No. 108 have a retrospective effect upon the scope of review, which I do not concede, then in order to justify a review of the questions properly triable upon the motion for a new trial, in the hearing of an appeal from a final judgment, such appeal must have been taken “from a final judgment of the superior court in a civil action, or special proceeding commenced in ¡such court, at any time within six months after the rendition of such judgment, and from any other judgment or order at any time within sixty days after the making of such order.” Sec. 1231, Rev. Stats. Ariz. 1913, Civil Code.

The fact is that this is not an appeal from a final judgment of the superior court in a civil action commenced in such court, but it is an appeal from the final judgment of the territorial district court commenced in such district court.

The motion for a rehearing does not have the effect to vacate the judgment, but its effect, and only effect, is to suspend further proceedings in the matter of carrying out the judgment. The proceedings of review upon appeal were closed when that judgment was rendered on January 27, 1913. The motion for a rehearing, if granted, would reopen the case for further consideration. If the judgment was void for want of jurisdiction at the time it was rendered, to refuse-to grant a rehearing upon that ground would not validate-a void judgment. T-he judgment must remain a judgment of this court of the date of its rendition, and the procedure carrying that judgment into effect was suspended by the motion for a rehearing from the date of rendition to the date of the order refusing a rehearing and as provided by law. Legislation which affects the procedure of this court after a. cause has been -submitted and a judgment has been rendered therein cannot have any bearing upon such a judgment, simply because a motion for a rehearing is pending. If the motion is granted, the cause is not again open for resubmission, but remains submitted for consideration upon the order of submission. It is my opinion that, where a cause is regularly ordered submitted for the consideration of a court, no change in procedure made thereafter can affect the consideration of such cause. A legislative change of a rule of evidence made after a cause has been submitted to a jury for consideration cannot be permitted to affect the consideration of a cause-submitted to the jury. When a cause has been submitted to a court or to a jury, its consideration depends solely upon the law in force at the time of submission. Had the changes in procedure been made before the cause was submitted, then the question whether the changed procedure would apply to-such cause would arise. No such question is before this court upon the consideration of a motion for a rehearing.

The court upon the hearing of this cause reviewed the questions of fact not properly before the court for the reason no appeal was perfected from the order of the court refusing a new trial. It is my opinion such action was without authority, and the only matter which the court could properly consider was the judgment-roll. So considered, the judgment should have been affirmed, as no reversible error appears upon the face of the judgment-roll.

I adhere to my former views, if the evidence is considered. The facts create a trust relation, making Steinfeld a trustee, with a duty cast upon him as such by the terms of his contract to account for the stock or its proceeds transferred to him by the husband of, and by, the appellee. He procured possession and apparent title to the stock through his promise to treat the parties right and received the conveyance of the stock through the efficacy of that promise, and the court of equity should enforce the spirit of the agreement. That Steinfeld intended to appropriate the dividends payable on the stock before he paid for the stock and out of such dividends pay the purchase price of the stock is the best evidence that no consideration passed supporting the contract of purchase. Such a contract is like one which would employ a fisherman to fish in the public waters upon a promise to give such fisherman a third part of the catch.

The judgment ought to be affirmed: First, because the appeal perfected was from the judgment and no reversible error appears in the judgment-roll; and, second, if the facts are before us for review, the judgment ought to be affirmed, because those facts support the judgment appealed from. I still persist in dissenting, regardless of the majority opinion, and its strictures upon those who cannot understand its terms.

NOTE.—On the question of the liability of the directors of a corporation to the corporation, see note in 55 L. K. A. 751.