Kleinecke v. North Confidence Mining & Development Co.

CHIPMAN, P. J.

Plaintiff brought the action to compel the defendant corporation to transfer to her on its -books, and to deliver to her, a certificate for 47,156 shares of its capital stock, of which she alleged she was the owner. The cause was tried by the court without a jury and findings and judgment were in favor of plaintiff. Defendants appeal from the judgment on the grounds that the evidence is insufficient to sustain the decision and that the decision is against law.

It appears from the findings of the court: Defendant corporation is organized and existing under and by virtue of the laws of the state of California, with a capital stock of seventy-five thousand dollars, divided into seventy-five thousand shares of the par value of one dollar each. On July 16, 1908, defendant Chute borrowed six thousand dollars from plaintiff, giving to her his promissory note for said sum, payable in

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six months, with interest, and indorsed and delivered to plaintiff three certificates representing in the aggregate 47,156 shares of the capital stock of the defendant corporation, then owned by him, as security for the payment of said note. Some payments of interest were made by defendant Chute, and he received from plaintiff an additional loan and, on July 16, 1912, he executed and delivered to her his promissory note for $8,580, and plaintiff continued to hold said shares of stock as security for the payment of the latter note, the first note being destroyed. The court found that said security was, on May 10, 1915, worth no greater sum than ten thousand dollars.

The plaintiff testified: That, in 1918 she removed from Sonora to Berkeley; that, in the month of May, 1915, she visited her daughter, Mrs. C. P. Jones, in Sonora, and, on the 10th of May, met Mr. Chute at the house by appointment. She testified: “I said to him: ‘Mr. Chute, I have a proposition to make to you in regard to this stock that I hold; I don’t want it any more as security. ’ I had had so much trouble, and I didn’t want to hold it any more with a string tied to it, I want it for my own. He said, ‘Mrs. Kleinecke, anything you ask me to do I would do, ’ and after a few minutes he said, ‘It would be necessary for you to have your papers with you to have a transaction of that kind.’ I said, ‘I have brought them with me for that purpose.’ He said, ‘This is no place to talk, so we will go inside. ’ We went inside the room he had occupied and there was a desk in the room; he went to the desk and sat down to it and I got the papers and handed them to him, that is, the note and other papers that were security, that is, the paper that he had written when he gave me the note stating that I was holding the certificates of. stock as security. I had these two papers and gave them to him. He said, ‘ These papers must be destroyed. ’ I said, ‘All right.’ He said, ‘You take these and destroy them.’ . . . I took the note and went to the stove and burned the papers up; I ivent back into the room. . . . Mr. Chute said, ‘If I.give you this stock I want you to give me an option to repurchase it.’ I said, ‘Certainly, I would do that.’ Then he went to work and figured up the amount that would be actually due me up to July 16, 1916, if the note hadn’t been destroyed. The amount ran to something over twelve thousand dollars and I agreed to let him repurchase the stock from me for the