51 Cal. App. 2d 542 | Cal. Ct. App. | 1942
Plaintiff, as executor of the will of Carrie M. Botts, brought this action to recover 617% shares of the stock of American Marine Paint Company alleged to be in the possession of defendant Parker. At the date of the death of Mrs. Botts this stock was in the possession of a San Francisco bank, and shortly thereafter the bank delivered the stock to Parker in accordance with written escrow instructions given by Mrs. Botts to the effect that the stock should be delivered to Parker in the event she predeceased him. Parker and the paint company are named as defendants. From a judgment for defendants plaintiff prosecutes this appeal.
The stock in question was delivered to the bank by Mrs. Botts with instructions to deliver it to Parker, subject to certain limitations hereafter discussed, pursuant to a written agreement dated December 14, 1934, between Mrs. Botts and Parker. Appellant contends that this agreement was without consideration, and, further, that it was ineffective as a gift. The trial court found that the contract of December 14, 1934, was supported by a valid consideration, and that the delivery by the bank to Parker was pursuant to that contract.
In order to secure a proper perspective of the present controversy, reference must be made to its background. James M. Botts and his wife Carrie M. Botts organized the American Marine Paint Company in 1903. The company prospered. James M. Botts died in 1934, and at that time he and his wife owned practically all of the stock in the company. By his will James M. Botts bequeathed to his wife her community interest in his estate; to R. Stanley Dollar $20,000; to defendant Parker 20 per cent of the stock of the American Marine Paint Company standing in his name at the time of his death; to his brothers and sisters the residue.
At the time Botts died, 1,953 shares of the stock of the company out of a total of 1,980 shares outstanding stood in the names of Botts and his wife as joint tenants. The estate was heavily indebted. If the shares were in fact held in joint
Prior to 1933 over 1,700 shares of the stock were in Mr. Botts ’ name and a little over 200 shares in the name of Mrs. Botts. In that year the stock was placed in the names of Mr. and Mrs. Botts as joint tenants. The new certificates issued in joint tenancy (with the exception of one certificate which was pledged with a bank) were not removed from the stock certificate book, and only one of the old certificates for which the joint tenancy stock was issued had been endorsed. The creditors and heirs of Botts contended that the stock was community property. Litigation was threatened over the issue.
Under these circumstances Mrs. Botts decided to compromise the controversy. She was very anxious to retain control of the company. If she contested the issue as to whether the stock was held in joint tenancy or as community property, and that contest resulted in a determination that it was held as community property and so part of Botts’ estate, the stock would be largely consumed in paying creditors of Botts and the Dollar and Parker legacies, and Mrs. Botts would lose the controlling interest in the company. In order that she might retain the controlling interest, she worked out separate deals with the creditors and heirs of Botts, with legatee Dollar and with defendant Parker. She ultimately permitted the stock to be inventoried in the estate of Botts as community property. This resulted in the estate being appraised at over $206,000. She borrowed large sums of money from the corporation with which some of the creditors were paid and their claims assigned to her. To other creditors she gave promissory notes. To legatee Dollar, executor of her husband’s estate and a legatee to the extent of $20,000, she gave her promissory note for $20,000, and received from him an assignment of his legacy and fees as executor. With Parker she worked
The present action grows out of transactions between Mrs. Botts and defendant Parker which were part of this general scheme for working out a solution of the problems connected with Mr. Botts’ estate. Parker had been bequeathed 20 per cent of the stock of the paint company standing in the name of Botts at the time of his death. If the stock was held in joint tenancy the legacy would fail. The only way that Parker could receive his legacy would be if the stock were held to be community property. Parker made no claim against Mrs. Botts or against Mr. Botts’ estate, but it is obvious that, so far as the legacy was concerned, his interests were adverse to Mrs. Botts. Both Mr. and Mrs. Botts had many times promised Parker that he would receive 20 per cent of the stock. From 1925 on Parker had been general manager of the paint company, and, after Mr. Botts’ death, he became president. For many years he had been in complete charge of the company. His relations with Mr. and Mrs. Botts were most cordial and friendly, and continued so until their deaths. Mrs. Botts was desirous of carrying out the terms of her husband’s will so far as Parker was concerned, and was also
Mrs. Botts shall transfer to Parker a number of shares of the stock of the paint company equal to 20 per cent of the present issued and outstanding shares of the company, when legally able; that if Mrs. Botts conveyed or hypothecated shares to the company pursuant to her agreement with that company, Parker agrees to contribute 20 per cent of the stock so conveyed or hypothecated. This provision was intended to permit Mrs. Botts, apparently at the option of the corporation, to pay her debt to the company, incurred for the purpose of raising money to pay Mr. Botts’ creditors, with stock, and required Parker to contribute from his 20 per cent a proportional amount of the stock so used. The provision which more particularly gives rise to this action reads as follows: “Upon the death of the First Party [Mrs. Botts], the Second Party [Mr. Parker] (if he be living at said time, and if he be not so living, the then survivors of the wife and children of the Second Party, in equal shares), shall be entitled to receive out of the shares of stock of said American Marine Paint Company owned by the First Party as many shares of said stock as, added to the shares of the capital stock of said corporation which may be owned by the Second Party (or by his above mentioned heirs if the Second Party shall have
Thus, upon the death of Mrs. Botts, Parker, or his wife and children if he predeceased Mrs. Botts, was to be entitled to receive stock of the company which would be sufficient with the stock he owned to constitute 51 per cent of the then outstanding stock of the company. To carry out this purpose the agreement provided that, when Mrs. Botts was legally entitled to do so, she should endorse and deposit in escrow a number of shares which would be sufficient with the shares then owned by Parker to equal 51 per cent of the then issued and outstanding stock. Thereafter, if further stock of the company was issued, additional shares were to be deposited in the escrow to maintain the 51 per cent percentage. During her lifetime Mrs. Botts was to have the right to receive all dividends and to enjoy voting powers and other benefits incident to the ownership of the shares deposited in the escrow.
It was further provided that, upon the death of Mrs. Botts, the escrow holder should deliver the certificates to Parker, if he was then living, or, if he had predeceased Mrs. Botts, the stock was to be delivered to Parker’s wife and children. But if Parker and his wife and children all predeceased Mrs. Botts, the shares of stock in the escrow were to be returned to Mrs. Botts. It was also provided that Parker, 1 ‘ or his said heirs, as the case may be, shall have a present vested interest therein and in the ownership thereof which shall mature upon the death of the First Party [Mrs. Botts], but which shall terminate upon the death of the Second Party [Parker] and all his said heirs leaving the First Party [Mrs. Botts] surviving them.”
The endorsement to be placed on the stock deposited in the escrow, as provided for in the agreement, was to be as follows: “The capital stock represented hy this certificate is hereby endorsed, transferred, set over and assigned to John Parker (or to his wife and children, if he shall predecease the undersigned) as of the date of death of the undersigned.
The agreement also provided as to the 20 per cent of stock which Parker was to receive that he should be without right to sell or hypothecate it without first giving Mrs. Botts an opportunity to meet any offer he had from any other person.
Upon the trial, over objection of appellant that it violated the parol evidence rule, Parker testified that the ‘ ‘ other valuable considerations” received by Mrs. Botts, and referred to in the contract were his oral promises to remain with the company throughout Mrs. Botts’ life, and not to interfere with whatever course she chose to pursue in regard to the stock standing in Mr. and Mrs. Botts’ names as joint tenants in connection with the probate of Mr. Botts’ estate.
As already pointed out, the so-called joint tenancy stock was thereafter inventoried in the estate of Mr. Botts as community property. The stock was subsequently distributed to Mrs. Botts, except for 20 per cent distributed to Parker. The decree of distribution was entered on August 4, 1936. On November 30, 1937, Mrs. Botts deposited 617% shares of the stock in escrow with the Crocker First National Bank in performance of her agreements contained in the instrument of December 14, 1934. She instructed the bank, upon receipt of notice of her death, to deliver the stock to Parker, if living, or, if he had died first, in equal shares to his wife and children. In the event Parker, his wife and children all predeceased her, on the death of the last survivor the stock was directed to be returned to Mrs. Botts. The directions were to apply to any additional shares which Mrs. Botts might deposit in the escrow. This provision arose from the agreement that if the number of shares outstanding should be increased Mrs. Botts should deposit sufficient to maintain the figure of 51 per cent.
In her will, executed in 1937, Mrs. Botts recognized her agreement with Parker. She made a bequest of her stock in the company, subject to her agreement with Parker. After her death the bank delivered the stock to Parker in accord with directions of the escrow.
It thus appears that Mrs. Botts at all times sought to, and did, abide by her agreement with Parker. There is no contention that Mrs. Botts ever expressed any dissatisfaction with that agreement. The case is not one where there is any
In this action appellant seeks to recover the 31 per cent of the stock thus delivered to Parker. No contention is made that Parker does not own the 20 per cent of the stock. Apr pellant contends that, as to the 31 per cent of the stock, the agreement of December 14, 1934, cannot be upheld as a contract because such contract is without consideration; that it cannot be upheld as a gift because Mrs. Botts retained the right to the return of the stock if Parker, his wife and children should all predecease her. Parker takes issue with both these major contentions. The trial court held that the agreement of December 14, 1934, was supported by consideration.
We do not find it necessary to decide whether, if there were not a valid contract, the transaction could be upheld as a valid gift. It is our conclusion that, as held by the trial court, the agreement of December 14, 1934, was amply supported by consideration.
The stock was placed in escrow pursuant to the agreement of December 14, 1934, and delivered to Parker pursuant to that escrow.
In determining whether there was a valid consideration for that agreement, it is essential to keep in mind that at the time that agreement was entered into there was a serious and debatable question as to whether the stock of the paint company was held by Mrs. Botts as the survivor of a joint tenancy, or whether it was community property. Some of the heirs of Mr. Botts had retained counsel who advised them the stock was community property. In Dollar v. Tooley, supra, this controversy is referred to as presenting a “serious question,” and it is pointed out that legatee Dollar, who was executor of Mr. Botts’ estate, had been informed by counsel that the stock was not held in joint tenancy. Appellant seeks to minimize the existence of these doubts concerning the status of the stock, and apparently contends that, as a matter of law, the stock was joint tenancy stock. Appellant also points out that Parker never assumed a position of hostility towards Mrs. Botts on this issue by claiming the stock was community property. While it is true that Parker, who was very friendly with the Botts family, never quarreled with Mrs. Botts over the issue, he knew of the controversy, and he knew that his
It is elementary law, and hardly requires citation of authority, that where there is a bona fide dispute, and the parties compromise their difficulties, the mutual promises of the parties constitute a valid consideration for the compromise, whatever the merits of that controversy may be. (See eases col
The considerations heretofore mentioned were set forth in the written agreement of the parties. These considerations, plus the presumption of consideration growing out of the fact the contract was in writing (§ 1614, Civ. Code) amply support the promises made by Mrs. Botts.
This determination makes it unnecessary to pass upon respondents’ contentions that if the above considerations are insufficient, sufficient consideration is to be found in Parker’s testimony that the “other valuable considerations” referred to in the contract were two in number: 1. His oral promise to remain with the company during Mrs. Botts’ life; and (2) his oral promise not to interfere with whatever steps Mrs. Botts might take with regard to the stock in the probate of her husband’s estate. Appellant contends that to permit such evidence of oral promises violates the parol evidence rule. Respondents urge that since the contract itself referred to “other valuable considerations” parol evidence is permissible to explain the meaning of the phrase. This is certainly the law in other states. (Hieatzman v. Braecklein, 131 Md. 485 [102 Atl. 917] ; Frame v. Attermeier, 147 Wis. 485 [133 N. W. 603]; Wright v. Stewart, 19 Wash. 179 [52 Pac. 1020].) In view of the fact that the considerations set forth in the agreement itself are ample to support the contract, no reliance need be placed on the oral promises.
For the foregoing reasons the judgment appealed from is affirmed.
Knight, J., and Ward, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied June 25, 1942.