O'Neil v. Donahue

Thornton, J.: This action was brought to recover damages for the conversion of forty-five shares of the capital stock of the Omnibus Railroad Company. The cause was tried by the Court, and judgment passed for plaintiff. Defendant moved for a new trial, which was denied ; and this appeal is from the judgment and order denying a new trial.

The Court below rendered its decision as follows:

“ This cause was tried by the Court, sitting without a jury, and the Court finds as follows :

“ 1. J ames O’Neil died September 5th, 1876, and plaintiff was appointed and duly qualified as administratrix on the 17th day of October, 1876, and has since continued to act as such!

“ 2. O’Neil, for ten years prior to his death, had been the confidential clerk of defendant, and until his death, collected large sums of money and made large disbursements for him, and had the custody and control of his private papers, was defendant’s agent in all his business affairs, and was implicitly trusted in all respects.

“ 3. Defendant, for ten years prior to O’Neil’s death, was President of the Omnibus Railroad Company, a corporation having its office in San Francisco, and was a large stockholder therein. Said O’Neil was secretary of said corporation during that time, as well as confidential clerk of defendant.

“4. Said defendant, during said period, at various times bought and sold a great many shares of said stock; said O’Neil acting as his agent in said transactions; and many of said shares [228]were transferred to said O’Neil on the books of said company, and afterwards to defendant—in all, several hundred shares.

“ 5. The by-laws of said corporation provide, that each director must be the bona fide owner of fifty shares of stock, as his own in his own right.

“ 6. In 1866, said Donahue gave to said O’Neil, and caused to be transferred to him on the books of said corporation, fifty shares of stock, with intent to qualify said O’Neil to act as a director in said corporation. Said stock was afterwards, as occasion required, transferred with other stock belonging to defendant as security for money loaned to defendant, said O’Neil acting as agent in said transaction. The same was again conveyed to said O’Neil; and the piece of forty-four shares, hereinafter mentioned, constitutes a part of said stock. There was no agreement that said stock would be conveyed back to defendant; but said O’Neil knew the purpose of such transfer, and also that said Donahue, who was the owner of much stock in many corporations, was in the habit of transferring stock to various persons to enable such persons to act as directors in such corporations, and that such persons were required,, after the stock was issued to them, to assign the same in blank, and deliver the same to Donahue; and such was the unexpressed expectation of both parties in the said transfer to O’Neil.