Bigelow v. Plummer

CRAIL, P. J.

This is an appeal from a judgment in favor of defendants in an action brought on a claim presented against the estate of decedent and rejected. It was tried on a stipulated set of facts.

We find that the defendant’s decedent, Serge Mdivani, cabled Insull Son & Co., Ltd., London, on June 2, 1931, that he was interested in buying shares of Insull Utility common on the instalment plan and for them to wire terms. On June 18, 1931, the London Company wrote Mdivani that as soon as it received instructions to do so it would purchase the shares in the open market, and send him a formal undertaking in writing to the effect that it had purchased the shares for his account, “These shares would not become your property until fully paid for. We would work out that they should be paid for over a period of ten monthly installments, and that you would receive no interest whatsoever or benefit by the dividends . . . until the shares are fully paid for. . . . We do not make a general practice of doing this type of business.” On July 2, 1931, Mdivani cabled the London Company to buy 1500 Insull common on the terms outlined above, and on July 3, 1931, the London Company wrote Mdivani that they had secured for his account 1500 shares at $32% per share, or a total of $49,125, and that the arrangement is “that you shall pay for these shares in ten equal monthly installments . . . and on completion of these payments the shares will be registered as instructed by you. ... It is understood that any dividends paid on these shares before you have completed payment will not accrue to you.”

On November 10,1931, the London Company wrote Mdivani setting forth a

resume

of the above facts and that they had received no response from him. In reply to this Mdivani wrote a letter setting forth that his affairs were in bad shape

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and that he could not make any payments at the present time. .Not long thereafter Insull Son & Company went into the hands of a liquidator and then into bankruptcy. The stock became of no value. None of the stock was ever delivered to Mdivani and none of the purchase price was paid. A claim was filed against his estate for the full amount of the purchase price with interest, but no instrument upon which the claim was founded was attached to the claim. It was rejected by the defendants. The trial court held that the relation between the London Company and Mdivani was not that of principal and agent but was that of vendor and vendee and that the claim filed by the plaintiffs with the defendants did not comply with section 706 of the Probate Code in that it did not have annexed thereto the necessary contract or copy thereof upon which said claim was purported to be founded, and therefore entered judgment in favor of the defendants. It is from this judgment the appeal is taken.