Barnard v. McIntire

LANGDON, P. J.

This is an appeal by the defendant from a judgment in favor of the plaintiff for $1,044.43. The action was an equitable one, to recover $2,688.35 upon an alleged unpaid subscription for stock, due from defendant to the America-Europa Film Company, against which company the plaintiff had recovered a deficiency judgment in an action to foreclose a chattel mortgage. The mortgage had been given by said .corporation to secure the payment of a note for two thousand five hundred dollars, payable to the plaintiff. The appellant has argued in his briefs a number of questions of fact and has quoted evidence in support of his version of the testimony. But there was conflicting evidence upon the decisive questions of fact in the case, and appellant’s argument upon the evidence merely raises the question of whether or -not there is any substantial evidence contained in the record upon which certain findings of the trial court may be based. The question of the due execution of the note to the plaintiff, secured by chattel mortgage, the consideration therefor, and such matters we may dismiss very briefly. They are argued by appellant, but are not open to inquiry here,, nor were they open to inquiry by the trial court. For, under the findings of the court that the plaintiff had recovered judgment in an action against the corporation based upon said note, and a deficiency judgment had been entered against said corporation after a sale of the personal property under the chattel mortgage, all matters relating to the validity of that obligation against the corporation became

res adjudicada.

It was found by the trial court that on January 18, 1916, the defendant subscribed for four thousand five hundred shares of the stock of the America-Europa Film Company, and agreed to pay two thousand five hundred dollars therefor, and that the sum of $510 had been paid by said defendant upon said subscription, leaving a balance due of $1,990; that on the fourteenth day of January, plaintiff subscribed for two thousand five hundred shares of the stock of said corporation and agreed to pay therefor the sum of two thousand five hundred dollars, and that no part of said sum

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has been paid. There are other findings of fact which will be discussed hereinafter. The trial court concluded that the plaintiff was entitled to a judgment against the defendant in an amount determined by the relative proportion which the respective amounts due from plaintiff and defendant to the corporation bore to the entire indebtedness sued upon. The court also allowed a reduction in the amount recovered from the defendant in the sum of $83.10, being four-ninths-of the value of the personal property sold under the chattel mortgage, and required the plaintiff to assign to the defendant a four-ninths interest in the balance of the judgment against the corporation after the application of the amount to be paid by the defendant and the amount to be off set against the plaintiff. The propriety of this last portion of the judgment is not presented for our consideration here, as it is favorable to the appellant, who is, of course, not objecting, and the respondent apparently also consented thereto.