Wooster v. Nevills

Foote, C. This action was for an accounting, and to compel the defendant, William A. Nevills, to return to [59]plaintiffs certain mining stock, of which he had fraudulently obtained from them a transfer.

The complaint was demurred to, the demurrer sustained, and the plaintiffs declining to amend their pleading, judgment was rendered for the defendant. In support of that judgment, their counsel contend that the complaint was to compel the rescission of a contract, and that in order to obtain that right, it was incumbent upon the plaintiffs to have alleged in their pleading that they had made a demand for the return of their stock and tender of the money they had received from Nevills, prior to the institution of this suit.

But as it appears to us from the statement of facts set out in the complaint, Nevills was not a purchaser of the stock from the plaintiffs in the proper and legal sense of that term; he never was at any time during the transaction, so far as they were concerned, anything more than an agent or trustee, bound to act for them in the whole matter in the utmost good faith. He deceived them into the belief that he, for them, could sell the mine in which they were stockholders, for a certain sum of money, if they would make him the apparent, but not' the real, owner of the stock. For the purpose, not of vesting title to the stock in him, but to enable him the better, as their agent, to sell the mine upon which the issue of the stock was based, they transferred the stock to him as requested. Instead of acting in good faith toward the plaintiffs, Nevills proceeded in fraud of their rights to sell the mine for a very large sum of money, for which he did not account to the plaintiffs, except to give them eight thousand dollars, and to have them cancel a debt due from him to them of three thousand dollars. He still retains their stock, in his own name, in a mine which is worth many thousand dollars more than he falsely assured the plaintiffs was its value, and has drawn their dividends upon the stock.

[60]We see no good reason why under such a state of facts Mr. Neyills should not be made to retransfer this stock to its true owners, toward whom he assumed the relation of an agent or trustee, nor why a full accounting as between the parties should not be had.