Cortelyou v. Imperial Land Co.

THE COURT.

This case was originally before the district court of appeal for the second appellate district for decision, but that court being unable to concur in a judgment the cause was brought here for further consideration. Accompanying the transfer of the case here are the several opinions of the judges of the district court of appeal. One of those opinions signed by the majority of the judges of the district court of appeal is as follows:—

“Action in equity to establish the right of plaintiff as the administrator of John G. Cortelyou to 250 shares of the capital stock of the defendant, Imperial Land Company, and to require the corporation to issue to the administrators certificates evidencing such ownership. .

“A demurrer to the complaint was sustained with leave to amend, and upon failure to amend the complaint, judgment went for defendants and against plaintiff, from which judgment this appeal is taken.

“While the complaint is not happily worded, the same may fairly be construed as alleging the following facts, namely: That one Cortelyou, deceased, plaintiff’s intestate, purchased from defendant corporation, through one Ferguson, its general manager, 250 shares of its capital stock, paying therefor

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an agreed price which it is averred was at the time the reasonable value thereof. That prior thereto the corporation had issued all of its shares of stock to Ferguson, its general manager, in payment for services rendered, but upon the agreement that certain of the stock so issued should be sold by Ferguson as treasury stock and the proceeds turned over to the corporation, and that certificates should be issued of such treasury stock in the same manner and with the same effect as though such stock had been retained in the treasury of the company unissued. That when Cortelyou purchased the .shares of stock it was agreed that the stock should be held by one Chaffey as trustee and voted by him under a pooling agreement, but that when the full purchase price was paid the purchaser should receive a copy of the certificates of .stock with the pooling agreement indorsed thereon; such copy of the certificates to be in form so as to enable the holder to transfer the same by indorsement. That no certificates were ever issued to Cortelyou as agreed, but the certificates evidencing the shares of stock purchased by Cortelyou continued to stand in the name of Ferguson. That long after the purchase by Cortelyou of the stock Ferguson assigned and transferred all the stock of the corporation in his name, including that of Cortelyou, to the defendants other than the corporation, who took the assignment of such certificates with full knowledge of Cortelyou’s rights, and upon an agreement that when the voting pool was dissolved they would cause to be issued to Cortelyou his certificates for the stock so owned by him. It is alleged that the pooling agreement was, by mutual consent, dissolved; when it is not made to appear. The demand for such certificates by plaintiff in his representative capacity is alleged, as is the refusal to issue the certificates as agreed. The prayer is that the right of plaintiff to this stock be established and the corporation be ordered to issue certificates therefor; and other allegations with reference to the rights claimed against the parties holding the certificates, not necessary to mention in connection with the consideration of the demurrer.