Sherriffs v. Hammon

STROTHER, J., pro tem.

This is an action by plaintiff, as the assignee of Jafet Lindeberg, to recover the sum of $95,745.21, alleged sale price of 538 shares of the capital stock of Miners and Merchants Bank of Alaska. The case went to trial on the issues raised by a third amended complaint and defendant’s answer. Upon the conclusion of plaintiff’s evidence, plaintiff applied to the court for leave to file a fourth amended complaint “to conform to proof”. Leave was granted, the court reserving any ruling as to the conformity.

This complaint alleges Lindeberg’s ownership of the 538, out of a total of 1,000, shares of the bank stock; that on September 7, 1922, by an agreement in writing, he sold defendant 250 shares of the stock “at the agreed price of the net asset value or book value thereof as of September 30, 1924”; that by said agreement he gave defendant an option to purchase his remaining 288 shares at the same ascertainable price as the other stock; that the 250 shares were delivered, and that on January 16, 1923, defendant exercised the option to purchase the 288 shares, and received the same. It is alleged, on information and belief, that on September 30, 1924, the net asset value or book value of the stock was $250 per share, and that on that date there became due to Lindeberg from defendant $134,500, of which no part has been paid except $38,754.79, leaving unpaid $95,745.21, for which judgment is demanded.

Judgment was rendered in favor of defendant, from which plaintiff appeals, bringing up the record in a bill of exceptions.

The court found that the sale of the 250 shares of stock by Lindeberg to defendant in September, 1922, was not at the price and upon the terms alleged in the complaint, but was upon the consideration of the payment by defendant, on March 2, 1922, of the sum of $12,500, on account of an indebtedness of Lindeberg to the Anglo-California Trust

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Company of San Francisco, with interest from that date to September 8, 1922; that Lindeberg gave defendant an option to buy the 288 shares upon substantially the terms alleged in the complaint, but that defendant never exercised the option; that on March 2, 1922, and long prior thereto, Lindeberg was indebted to Anglo-California Trust Company in the sum of $25,000, as security for which he had pledged 499 shares of the stock of the Alaska bank; that on that date the defendant, at the request of Lindeberg, paid the trust company $12,500 on account of his indebtedness, and received from the bank, at Lindeberg’s request, a certificate for 250 shares of stock of the Alaska bank, which it was agreed defendant should hold as security for the money advanced by him to the trust company on Lindeberg’s account; that on or about September 8, 1922, Lindeberg sold the 250 shares to defendant in consideration of the payment made the trust company, and interest from March 2 to September 8, 1922; that on November 25, 1922, defendant, at the request of Lindeberg, paid to the trust company the balance of the principal of $12,500 owing from Lindeberg, with accrued interest, and an assessment of $50 per share which had been levied on the bank stock, amounting in all to $25,897.97, and, by agreement with Lindeberg, took over from the trust company and held as collateral security for the repayment of that amount, the 249 shares of bank stock; that on February 21, 1923, in consideration of the payments so made by defendant, and the purchase from Lindeberg by defendant of certain shares of stock in a mining company for which cash payment was made, Lindeberg sold to him said 249 shares.