Tasker v. Phelps

YORK, J.

Both of the appeals really depend upon the objection that there is not sufficient evidence to support the findings. An examination of the evidence shows that, with the exceptions hereinafter noted, each and every of the findings necessary to support the judgment is fully supported by direct evidence. It is true that there was evidence that would support different findings, but the findings of the trial court, under such a record as we have here, are binding upon this appellate tribunal. The exceptions above mentioned are covered by amendments, which are hereby made in order to conform to the evidence, as follows:

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Finding II is amended to read as follows: “That on the 12th day of July, 1928, and for some time prior thereto and at all times thereafter, said corporation had subscribed and outstanding a total of 500 shares of its capital stock.”

Finding III is amended to read as follows: “That on July 12, 1928, the defendant Harry C. Phelps was a stockholder of said Wilmont Auto Livery, and had 249 shares of its subscribed, issued and outstanding capital stock, and at the time of delivery of the promissory note set out in the complaint, said defendant was the owner of 498 shares of said stock, including said original 249 shares owned by him. That said promissory note, although dated July 12, 1928, was not delivered until on or about August 2, 1928.”

Finding Y, which sets forth the fact of execution and delivery of said promissory note, is amended by striking out the words, “that for the purpose of evidencing said obligation”, and by substituting therefor the words, “that in full payment of said prior obligation”.

The judgment appealed from is affirmed.

CONREY, P. J., Concurring.

I concur in the judgment. The action is brought to recover upon the statutory liability of defendant Phelps as a stockholder, to pay a proportionate part of money due on a promissory note executed by Wilmont Auto Livery, a corporation, in favor of Wilmont Auto Works and Garage Company, a corporation, which note passed by assignment through successive holders, until it came into the hands of the plaintiff. The intervener, claiming prior rights by assignment of the note, seeks to enforce the same obligation.