Winterburn v. Sherriff

THOMPSON, J.

This action was brought for the purpose of securing the cancellation of certain certificates of stock evidencing shares of the capital stock of the defendant corporation, Penn Investment Company, and the issuance of a new certificate on the ground that the certificates were wrongfully withheld by the defendant and appellant Carrie IT. Sherriff. For a more complete statement of the nature of the action, reference may be had to an opinion on a former appeal in this same cause in 61 Cal. App. 531 [215 Pac. 406]. Subsequent ~o that decision the case was tried, re-suiting in a judgment that the seven certificates of stock, representing fifty-three shares, and being all of the shares mentioned in the complaint, should be canceled, and direct-jug the defendant corporation upon tender to it of its costs to issue a new certificate for fifty-three shares. The appeal is from the judgment.

On January 4, 1921, W. J. SherrifE, who was the uncle of plaintiff and the brother-in-law of appellant, transferred to the plaintiff the shares of stock in question, apparently for a valuable' consideration. In March of the same year, plaintiff redelivered the certificates, assigned by him in blank, to W. J. SherrifE, by whom they were retained until two days before his death in July, 192-1, when, being advised of the seriousness of his illness, he delivered them to the appellant Carrie Y. SherrifE. Before delivery the at

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tending physician, at the direction of Mr. Sherriff, filled in the name of appellant in the blank assignment on all except one certificate for ten shares, which by apparent oversight was left general. Over the consistent and strenuous objections of appellant’s counsel the plaintiff was permitted to introduce testimony to the effect that the delivery of the certificates to W. J. Sherriff by plaintiff was upon the oral understanding between the plaintiff and his counsel that they were to be used by the latter in effecting a settlement with his wife, and if not used for that purpose were to be returned. It was further testified that the certificates of stock were never used for that purpose. It is the reception of testimony covering the oral agreement under which the stock was delivered to W. J. Sherriff of which appellant complains and which she urges as a ground for a reversal of the judgment, contending in support thei'eof that appellant’s chain of title was complete; that plaintiff could not introduce testimony to vary the terms of the assignments by him and the delivery to W. J. Sherriff, contracts complete in themselves ; that the testimony should have been excluded because the plaintiff having failed to plead that he intended the assignments for a limited purpose is precluded from proving such purpose; and lastly that plaintiff made a gift to W. J. Sherriff which was complete and irrevocable.