Sterilization Co. v. Tucker

LENNON, P. J.

This is an appeal from a judgment that plaintiff and intervener take nothing and from the order denying plaintiff’s and intervener’s motions for a new trial.

[572]

Plaintiff’s complaint alleged, the execution of a contract between the plaintiff and the defendant, by the terms of which plaintiff was to sell and the latter was to purchase 64,650 shares of the plaintiff’s capital stock; the repudiation of the contract by the defendant, and plaintiff’s election to hold said shares of its capital stock for the benefit of the vendee and sue for the full amount of the contract price.

The trial court found, in effect, that the contract in question was not executed between defendant and plaintiff, and the only question raised by plaintiff on this appeal involves the sufficiency of the evidence to support that finding.

The record discloses in part that defendant Tucker entered into an agreement with one Hanus to buy 64,650 shares of the capital stock of the Sterilization Company of California at fifty cents per share, and deposited with one Wilkinson, the intervener, ten thousand shares of the capital stock of the Pantheon Oil Company as security for his performance of the said contract. He entered into the agreement at the solicitation of Wilkinson, who represented to him that he, Wilkinson, was the owner of certain patented rights, which were of great value in treating citrus fruits with a gas; that he had organized the Sterilization Company for the purpose of employing the patent in California, and had entered into a contract with the corporation plaintiff to sell it certain machines.

Wilkinson made the further representations to defendant that Hanus had undertaken to finance the Sterilization Company, for which he received about two-thirds of the company’s stock, but that he was about to fail in his undertaking, in which case the Sterilization Company would be unable to keep its contract with Wilkinson, and that Wilkinson was in a position to take any right that Hanus or the Sterilization Company had in reference to the gas process. To protect Hanus and enable him to perform, Wilkinson requested defendant to carry on his negotiations through Hanus.

While there is evidence to the effect that Hanus was the secretary and managing agent of the Sterilization Company with power to contract for it, on the other hand there is evidence to support the finding of the trial court that Hanus was not the agent of the corporation in the execution of the contract in question. Thus it was shown that defendant dealt with Hanus solely as the agent of Wilkinson; that defendant’s