Powell v. Powell

[156]

BRITTAIN, J.

The plaintiff appeals from a judgment, the effect of which was to determine that 249 shares of the capital stock of Powell Brothers Construction Company belonged to J. A. Powell and R. V. Powell, and that the estate of Charles G. Powell, deceased, had no interest in them as the beneficiary of any trust.

Charles G. Powell formed the corporation defendant and J. A. Powell and R. V. Powell owned equal interests in it; The other defendants held qualifying shares to enable them to act as directors. Charles G. Powell died in 1913. For ten years he suffered from an incurable disease. He retired from active business in 1912. Prior to his retirement he had done nothing for the corporation for some time. In November, 1912, he transferred to his brothers 249 shares of the stock, and they issued to him one share to qualify him as a director and to permit his name still to be used as president of the corporation. In January, 1913, he transferred'this single share to them and resigned as president. The appellant claims the transfer of the 249 shares was without consideration and upon a trust for the benefit of Charles G. Powell. The lower court found Charles G. Powell had sold 248 of the 249 shares and all the credits he owned against the corporation for ten thousand dollars paid to him by J. A. Powell and R. Y. Powell, and that he subsequently sold to them the remaining share for one hundred dollars. The court further found that each of the transfers was

bona fide,

that neither was upon any understanding that the buyers should retransfer, that the transfers were absolute and intended so to be, and that the holdings were not charged with any trust.

As a part of a very long finding condensed in the statement just made the following language relating to the payment of the ten thousand dollars was used; “All the money used for said payment came from the safe deposit box of R. Y. Powell who had almost one thousand dollars remaining therein after withdrawing the said ten thousand dollars therefrom.” The appellant attacks this finding of the probative .fact, arguing that since the finding of the ultimate fact of purchase depends on the finding of payment of ten thousand dollars, and the fact of payment depends on the money coming from the safe deposit box, if it should be demonstrated there was not ten thousand dollars in the box, the entire structure must fall.