Chapman v. Associated Transit Terminal Corp.

BURROUGHS, J.,

pro tem.

This is an appeal by the defendant Pearl V. Exterstein from a judgment ordering a transfer of certain shares of the capital stock of the defendant corporation, Associated Transit Terminal Corporation, now standing in the name of said Pearl V. Exterstein, to the plaintiff. The judgment decreed the plaintiff to be the owner of 395.25 shares of the preferred and 3,068.10 shares of the common stock of said corporation, and ordered an assignment of the same and the filing thereof with the county clerk within thirty days. The defendant was also enjoined from selling or disposing of said stock.

One of the specifications of error is that the evidence does not support the findings of fact, conclusions of law and judgment. The finding complained of is as follows: “That it is true that on, to-wit: July 20th, 1925, it was agreed by and between plaintiff and said H. J. Exterstein that a new corporation should be organized in which both common and preferred stock should be issued and stock of the Transit Company transferred to such new corporation and shares of the new corporation issued to the stockholders of the Transit Company, transferring their stock to the new corporation in such proportion as the stock so transferred should bear to the stock of said Transit Company delivered to the new corporation so to be organized, and that plaintiff should transfer his said 1500 shares of the capital stock in said Transit

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Company to one Thomas Massey, and that said Massey in turn would transfer such stock to the new corporation so to be formed and that said H. J. Exterstein would proceed to have the new corporation organized and when organized would cause its capital stock to be issued to Chapman and other stockholders in said Transit Company in exchange, as aforesaid, and that thereupon plaintiff endorsed, assigned and transferred his said certificates of stock for 1500 shares to said Massey pursuant to said oral agreement and thereafter and on July 20th, 1925, said Massey surrendered said certificates endorsed to him as aforesaid by plaintiff, to said Transit Company and a new certificate for 1500 shares of the capital stock of said Transit Company was issued to said Massey and that thereupon said Massey endorsed such new certificate in blank and delivered it so endorsed to said H. J. Exterstein for the purposes aforesaid, all in pursuance of the agreement hereinbefore referred to without any other or further consideration whatsoever; that thereafter said H. J. Exterstein caused the defendant Associated Transit Terminal Corporation, hereinafter called the Terminal Corporation, to be organized under the laws of the State of California relating to corporations, with authority to issue both preferred and common stock with the par value of Ten Dollars per share; that thereafter said H. J. Exterstein, without the knowledge, acquiescence or consent of either said Thomas Massey or plaintiff, inserted the name of defendant Pearl V. Exterstein in said certificate as transferee, which insertion was without any consideration whatsoever, and that plaintiff had no notice nor knowledge of the insertion aforesaid until about January, 1928; that said H. J. Exterstein surrendered said certificate of stock, endorsed as aforesaid, to the said Transit Company, together with other certificates for 2,900 shares of said stock in said Transit Company, all standing in the name of defendant Pearl V. Exterstein and caused to be issued in lieu thereof a new certificate for 4,400 shares of its capital stock in the name of defendant Pearl V. Exterstein, and thereupon said H. J. Exterstein caused said stock to be endorsed by defendant Pearl V. Exterstein to defendant Terminal Corporation, and thereupon and thereafter defendant Terminal Corporation, in consideration of the transfer to it of said certificates for 4,400 shares issued 1,000 shares of the preferred capital