142 P. 1115 | Nev. | 1914
Lead Opinion
By the Court,
This is an action brought by N. B. Torp and others, claiming to be legatees under the last will and testament of J. B. Overton, against J. H. Clemons, named as executor of said will and residuary legatee of the estate of the said Overton, deceased.
The action was brought in the district court to set aside the decree of settlement of the first and final accounting of the executor, and to set aside the order of final distribution of the estate of J. B. Overton, as theretofore made and entered, and to compel J. H. Clemons, as executor of the will of J. B. Overton, deceased, to account for 160 shares of the preferred stock of the Oakland Traction Company and the avails thereof.
The court below, at the conclusion of the trial, found, among other things, thát on or about the 13th day of December, 1907, J. B. Overton was the owner of and in possession of and transferred and delivered to the defendant Clemons 160 shares of the capital stock of the Oakland Traction Company, a corporation organized and existing under and by virtue of the laws of the State of California, and of the par value of $16,000; that said transfer was made to the said defendant in trust for the said J. B. Overton; that the defendant paid no consideration therefor, but then and there promised and agreed with the said J. B. Overton to hold said stock certificates, representing the • same to the use and benefit of the said J. B. Overton, and to turn the same over to the said J. B. Overton upon demand. The court further found that demand was made by the said J. B. Overton to the defendant for the return of said stock, and that the defendant failed and refused to return the said stock
It is the contention of respondent in this case that none of the grounds assigned as error can be considered by this court, for. the reason that the statement upon appeal in this case does not contain assignments of error covering the same or any assignments of error whatsoever. It is our judgment, however, in this respect that a sufficient compliance with the statute appears, and the errors assigned and excepted to were duly presented and brought to the attention of the trial court on the motion for a new trial and are brought here in connection with and attached to the transcript on appeal.
" It is hereby stipulated and agreed by and between the above-named plaintiffs and defendant named above that defendant may have until and including the 22d day of August, 1913, in which to serve and file his notice of intention to move for a new trial in the above-entitled action.”
It is the contention of the respondents herein that, notwithstanding this stipulation, the court had no jurisdiction to hear the motion for a new trial. Under the old practice act (Comp. Laws 1873, sec. 1258; Cutting’s
It is our judgment that, notwithstanding the change in procedure, as appears in the Revised Laws, the stipulation, as entered into in this case, was a waiver of objection on the part of the respondent.
This case, however, presents another phase; i. e., the amount of stock transferred from Overton to Clemons which became subject to the trust. The testimony of Mrs. W. H. French, as well as that of Mrs. Clara M. Willis, is to the effect that in their hearing and presence, on several different occasions, the deceased, Overton, made demand of appellant, Clemons, for the stock of the Oakland Traction Company, held by him, and in that connection a certain written demand was identified by the witness, Mrs. French, and introduced in evidence, the contents of which is as follows:
"Everett, Washington, June 10,1909.
"Mr. J. H. Clemons, 404 So. Virginia St., Reno, Nevada
—Dear Sir: I hereby make formal demand on you for return of 160 shares (160) of preferred stock of the Oakland Traction Company (or whatever its legal name may*478 be) of Oakland, California, the said stock having been placed in your hands in trust for me and subject to my demand at any time. I have asked you several times to send this stock to me and now make formal written demand that you deliver all of said stock properly indorsed to H. E. Willis, of Everett, Washington, for such disposition as I may direct. J. B. Overton.”
Two days prior to the date of this instrument, the deceased, Overton, wrote a letter in his own hand to the appellant, Clemons, which is as follows:
"Seattle, June 8, 1909.
"My Dear Jay: I will try and write' to you to try and get an answer from you to let me know how you are progressing in your suit defending the Oakland property. Who have you for a lawyer? All you can do is to defend it as your property, and is not liable for any of the deposits in any bank nor was not when you bought it. The sale was made before depositors had made any claim and the bank was claiming that the bank wak, was solvent, and there can be no lien on the stockholders’ property until have complained in some court record. If they get a judgment against me, and not against your property, and a judgment against me don’t amount to anything as I have no property and don’t want any. If you could manage to spare me the traction stock it would make it easy for me, and I could help you some, and I need it very much. It was bought with my money, and if you could indorse it and send it to me I would be able to do something that would benefit both of us. I can’t see and I hope you will have no difficulty in making it out. If you want anything from me, let me know, and I will try and respond.
"Lovingly yours, J. B. Overton.”
It is disclosed by the testimony of Mrs. French, at whose home, in the State of Washington, the deceased, Overton, lived for some years and was abiding in at the date of the instrument, that the eyesight of the deceased was very poor, and in that respect she testified that "he could not read very well. If we held a magnifying glass
By the testimony of the witness Whitehead, it is disclosed that the deceased stated that the appellant, Clemons, was his adopted son.
In his letter of June 8, addressed to the appellant, Clemons, there is no mention of the number of shares of stock owned, nor is there any expression from which one might infer the existence of a trust or an obligation on the part of Clemons to return the stock to the writer. He says, "If you could manage to spare me the traction stock it would make it easy for me and I could help you some. ”
It is the contention of the appellant herein that, if any trust relation existed between the deceased, Overton, and appellant, it could not affect more than fifty shares of stock of the Oakland Traction Company, and, in that respect, the testimony of the witness Taylor, secretary of the Oakland Traction Company, is especially pertinent.
The witness- Taylor testified that on the 13th of December, 1907, there were fifty shares of stock of the Oakland Traction Company held by J. B. Overton. He testified that that was the only stock then held by J. B. Overton, and further testified that it was the only stock transaction in which the name of J. B. Overton appeared on the books of the corporation. The stock then held by J. B. Overton was represented by a certificate No. 949;
"This paper I have before me is the ordinary blank used by the Realty Syndicate, dated December 13, 1907, and calls for the transfer from the holdings of the Realty Syndicate 110 shares of preferred capital stock of the Oakland Traction Company, to be issued to J. H. Clemons. With that was surrendered certificate 949 in the name of J. B. Overton, showing that 60 additional shares went to J. H. Clemons. The record shows that that was transferred — the 50 shares- of Overton were transferred to Taylor, trustee, in order to get the 110 for Clemons, as there was only an actual issue of 60 additional shares; the 110 including the 50 from certificate 949. To facilitate business, the stock of the Realty Syndicate is .in my name as trustee, and transfers are made back and forth. ”
At another place in his deposition, the witness Taylor says: -
"The .authority for transferring 60 additional shares at that time was the order signed by Mr. Chase, one of the agents of the company. ”
At another place the witness Taylor said:
"As.secretary.of the. Oakland Traction Company, I was called upon to issue 110 shares of preferred stock to J. H. Clemons. Our sales that day were 60 shares. I called for the other 50. shares for the transfer, to make up the amount. I was given the certificate of J. B. Overton, No. 949, to make up the difference.”
Testifying as to who was present at the time of the making of this transfer on December 13, 1907, the witness said:
"Q. (by Mr. Heer). From whom did you receive the certificate for the 50 shares? * * * A. I don’t remember.
" Q. Was Mr. Overton present at the time you received it? A. No.”
"I don’t remember whether it was a boy, or Mr. Chase, or a messenger who delivered this order. I have forgotten just who did bring it. We sold 60 shares, and the order called for 110, and I could not deliver without the balance of the stock coming through. ”
Relative to the consideration that passed at the time of the issuance of the stock, the witness Taylor testified:
"Q. (by Mr. Heer). Can you state whether or not any consideration passed to you for the transfer to Mr. Clemons or to the Realty Syndicate, of which you were trustee? A. There was consideration passed to the Realty Syndicate.
"Q. I have reference to the 50 shares only. A. No, no consideration in any way at all.
"Q. And by the 50 shares I mean the 50 shares that were transferred by Mr. Overton to you, that were at the same time transferred by you as trustee to Mr. Clemons? A. No consideration whatever.”
Annexed to the deposition of the witness Taylor are the canceled certificates, representing the several stock transactions, in which the deceased, Overton, and the appellant, Clemons, appear on the books of the Oakland Traction Company. .
Exhibit No. 1 is certificate No. 949, purporting to have been issued to J. B. Overton, and is for 50 shares of stock of the Oakland Traction Company.
Exhibit No. 2 is certificate No. 1386, purporting to have been issued to S. J. Taylor, trustee, and is for 50 shares of stock of the Oakland Traction Company.
Exhibit No. 3 is certificate No. 1387, purporting to have been issued to J. H. Clemons, and is for 110 shares of stock of the Oakland Traction Company.
From the testimony of the witness Taylor, as it appears in the record by deposition, certificate No. 1387, for 110 shares, was issued by him, as secretary, to J. H. Clemons on the 13th day of December, 1907, and the shares represented by that certificate consisted of 50 shares of stock
In his letter to appellant, the deceased, Overton, stated that the stock of the Oakland Traction Company, referred to in his letter, was purchased with his money. He nowhere gives expression as to the number of shares of stock to which he referred as having been purchased with his money. We find nothing in the record upon which the presumption might be based that Overton, either on the 13th of December, the date on which the transfer took place, or on any prior or subsequent time, was a party to any transaction involving shares of stock other than the ■50 shares represented by certificate No. 949.
"Q. Do you know the present market value of the preferred stock of the traction company? A. I think you can buy plenty of it for $92.50 a share at the present time — not plenty of it, but you can buy it at that price.
" Q. That is sort of negative testimony as to the value of it. Do you know the market value at the present time? A. I only know that I had to buy some for a friend of mine the other day, and I paid $92.50 a share for it. ”
The testimony referred to was objected to by counsel for appellant, and several grounds of objection specifically set forth and exception duly reserved. No other evidence was offered bearing upon this subject, and we are unable to determine, from the record before us, how the trial court fixed the value of the stock at $90 per share.
In the case of Robinson M. Co. v. Riepe, 37 Nev. 33, 138 Pac. 910, following former decisions of this court, we said: " This point has been settled by this court, and the rule established, that in cases of this character the damages which necessarily follow from the wrongful act of conversion are the value of the property at the time of conversion with legal interest from conversion to judgment. (Boylan v. Huguet, 8 Nev. 345; Ward v. Carson R. Wood Co., 13 Nev. 44.)”
In our judgment the objection to the interrogatories
The value of the stock at the time of the conversion was the fact material to the issue. The time of conversion, if conversion took place at all, was more than two years prior to the date on which the witness Taylor fixed the value of the stock. So far as the record discloses, there was no fact established by the evidence produced in the case upon which the court could determine the value of the stock at the date of the conversion, and hence no fact was established upon which the court could be warranted in making the finding which it did make with reference to the value of the shares of stock affected by the trust. This was a vital element in the case inasmuch as it was made an issue by the pleadings.
There being no fact presented by the record in this case as it is before us from which the trial court could be warranted in entering the judgment and decree as it was entered either as to the number of shares of stock affected by the trust or as to the value of the stock at the time of the conversion it necessarily follows that the judgment must be reversed.
The judgment and order appealed from are reversed and the case remanded for a new trial.
Rehearing
On Petition for Rehearing
Rehearing denied.