Fred Miller Brewing Co. v. Gaudio et al., 50 Utah 66

and by-laws with the secretary of state and with the county clerk of Salt Lake County; that the plaintiff had failed to use due diligence to collect from the defendant Gaudio; and that the bond had expired before the indebtedness sued upon was incurred. The defendants Gaudio and Whittaker were not served with process, and the action was prosecuted against the defendant Denhalter alone.

A trial to the court without a jury resulted in findings and judgment in favor of the defendant. Plaintiff appeals from the judgment.

Numerous errors are assigned, but for a proper determination of plaintiff's appeal it will not be necessary for us to discuss and pass upon all of them here, or other than the finding of the trial court:

"That the plaintiff has failed to prove that there is any balance duc it from the said Joseph Gaudio, or that there was any balance due it from said Joseph Gaudio at the time of the filing of the complaint herein."

At the trial, pursuant to stipulation, the deposition of C. J. Smith, a witness on behalf of plaintiff, was read wherein he testified that the plaintiff was a corporation organized under the laws of the state of Wisconsin; that it had no branch office or representative located in the state of Utah; and that he was an employee traveling and soliciting trade for it. The plaintiff offered to introduce in evidence a purported statement of the account sued upon and complains of the trial court's refusal to receive it. The only evidence submitted to the trial court to prove the correctness of this statement was that of the witness C. J. Smith, concerning which he testified as follows:

"Mr. Barnes: I would like to interpose a question here. Did you make this statement out? A. No, sir.

"Mr. Skeen: I will ask you whether or not you had any conversation with Mr. Joseph Gaudio with respect to the balance he owed to your company, the Fred Miller Brewing Company, along in October, 1912? A. Yes, sir. Q. State what that conversation was. A. In regard to his account-his indebtedness to the Fred Miller Brewing Company? Q. Yes. A. At that time I had with me a statement from the brewery

Appeal from Salt Lake County, Third District

for collection against Mr. Gaudio. I believe after that he failed and moved somewhere down in Illinois. Q. Well, how did you discuss with him the amount that was due to your company, the Fred Miller Brewing Company, at that time? A. At that time I believe he owed us $1,200 or $1,300; I cannot just recollect the amount, but somewhere around $1,200 or $1,300.

Q. Do you know

Q. Have you any memorandum to which you could refer to refresh your recollection and state the amount due at that time? A. I haven't anything in my possession at the present time, except this statement. I do not carry the books along with me from the brewery. They are made up by the bookkeeper and submitted to the agents as being correct. * * * Q. And that was in May? A. In May, 1912. as to what payments have been made since? cept by referring to the statement. the total amount of goods furnished by your company to Joseph Gaudio pursuant to the contract set out as Exhibit A here, and which Joseph Gaudio received at Salt Lake prior to the month of May, 1912? A. Well, I could not unless I referred back to this statement.

A. Nothing, exQ. Can you state

"Mr. Barnes: And your knowledge as to the amount due is based on Exhibit B, by reference to Exhibit B? A. Yes, sir. Q. The various amounts you have given in this testimony? A. Yes, sir."

1

Such was the character of the testimony upon which plaintiff relied, not only for the purpose of proving the correctness of the proffered statement of account rejected by the trial court, but for the purpose of proving its case and to establish a present liability against the defendant as well. The burden was on the plaintiff to show that the account in question was correct, more especially when, as here, it was seeking to establish a liability on the part of a surety having properly controverted the plaintiff's allegation of the defendant Gaudio's indebtedness to it.

After carefully reviewing the record here, we think the trial court's finding that the plaintiff failed to prove any indebtedness owing to it from the defendant Joseph Gaudio is amply justified. In view of the conclusion that the

2

Coray, Admr. v. Perry Irrigation Co., 50 Utah 70

plaintiff has failed to prove a case, the defense that it had failed to comply with the Utah statutes relating to foreign corporations becomes immaterial, and we here express no opinion upon that subject.

The judgment rendered in favor of the defendant C. H. Denhalter dismissing him from all liability to the plaintiff must be affirmed, with costs.

It is so ordered.

FRICK, C. J., and MCCARTY, J., concur.

CORAY, ADMR. v. PERRY IRRIGATION CO.

No. 3065. Decided June 26, 1917. (166 Pac. 672)

1. CORPORATIONS-ISSUE

OF CERTIFICATES-WRONGFUL

REFUSAL PLEADING. A complaint alleging that plaintiff's intestate subscribed for stock in defendant corporation, fully paid therefor by delivering to it a quitclaim deed, and that defendant on demand refused to issue or deliver stock certificate to plaintiff's intestate, or to plaintiff as her administrator, states a cause of action, though it does not allege specifically that plaintiff's intestate was entitled to stock, or character and amount of consideration paid therefor, or that she was entitled to certificate demanded, where it alleges facts from which conclusion as to existence of these essential elements is irresistible. Page 72.) 2. CORPORATIONS-ISSUE OF CERTIFICATE WRONGFUL REFUSAL ACTION. An action for damages will lie for the wrongful withholding by a corporation of a stock certificate, in view of Comp. Laws 1907, section 530, recognizing the use of stock certificates as muniments of title, and the form of action is immaterial, if complaint shows plaintiff entitled to any remedy legal or equitable.' (Page 73.)

3. EXECUTORS AND ADMINISTRATORS-COLLECTION OF ASSETS-POWER TO SUE. Under Comp. Laws 1907, sections 3912, 3915, relating to collection of assets, an administrator may demand of corporation stock to which intestate was entitled, or bring action for damages for its failure to issue stock. (Page 75.)

Appeal from District Court, Second District; Hon. A. W. Agee, Judge.

1 Kuhn v. McAllister, 1 Utah, 274, affirmed 96 U. S. 87, 24 L. Ed. 615.

Appeal from Weber County, Second District

Action by L. L. Coray as administrator of the estate of Mary J. Allred, deceased, against the Perry Irrigation Company. Judgment for defendant. Plaintiff appeals.

REVERSED and REMANDED.

Geo. Halverson for appellant.

John G. Willis for respondent.

THURMAN, J.

!

Does the complaint state facts sufficient to constitute a cause of action? That is the only issue presented by this appeal. Paragraphs 1 and 2 of the complaint allege the capacity of the plaintiff as administrator of the estate of Mary J. Allred, deceased and also the corporate existence of the defendant. The complaint then proceeds:

"(3) That the said Mary J. Allred, at the time of the incorporation of said defendant, subscribed for 26 shares of its capital stock, and that at the time of said subscription she fully paid said defendant for said shares of stock by the execution and delivery to it of a certain quitclaim deed; that said defendant failed and neglected during the lifetime of the said Mary J. Allred to issue to her its certificate evidencing her ownership of said shares of its capital stock, and has ever since neglected and failed to issue the same to her, or to her legal representatives; that this plaintiff, since his appointment and qualification as administrator as aforesaid, demanded of said defendant to issue its certificate of stock for said shares to him as administrator as aforesaid, and to deliver the same to him, and that he made such demand on or about the 24th day of February, 1916, but notwithstanding the subscription aforesaid, and notwithstanding the demand of this plaintiff as aforesaid, said defendant refused to issue or deliver such certificate to the plaintiff, or any other person, and still refuses so to do; that said stock was at the time of said refusal, and still is, of the reasonable value of $125 per share, or an aggregate value of $3,250." (Prayer for judgment.)

Coray, Admr. v. Perry Irrigation Co., 50 Utah 70

The defendant interposed a general demurrer to the complaint, which was sustained. The plaintiff elected to stand upon his complaint, whereupon the court entered judgment dismissing the action. Plaintiff appeals to this court, and assigns these proceedings as error.

The complaint is brief and inartificial. It is not as comprehensive and complete as is required by the models of good pleading, but the question we have to consider is: Does it state facts sufficient to constitute a cause of action? The allegations as to the capacity of the plaintiff and the corporate existence of the defendant are unexceptionable. The complaint, in effect, states that plaintiff's intestate, at the time of the incorporation of the defendant, subscribed for 26 shares of its capital stock, and fully paid defendant therefor by delivering to it a certain quitclaim deed; that the defendant, during the lifetime of plaintiff's intestate, failed and neglected to deliver to her a certificate evidencing her ownership of said stock, and likewise neglected and failed to issue a certificate to her legal representatives; that plaintiff, after his appointment and qualification as administrator, as such demanded of defendant that it issue to him, as administrator, a certificate for said shares; and that the defendant refused to issue or deliver said certificate to the plaintiff, or any other person, and still refuses so to do. Plaintiff then alleges the value of the stock, and demands judgment for damages and costs. All of these allegations are admitted by the demurrer.

1

It is true the complaint fails to allege in specific terms that plaintiff's intestate was entitled to the shares of stock, or the character and amount of the consideration paid therefor, or that she was entitled to the certificate demanded. These are the points wherein the complaint is inartificial, but it does allege facts from which the conclusion is irresistible as to the existence of these essential elements. was entitled to a certificate because she had subscribed for the same and paid therefor in full. It matters not what was represented by the quitclaim deed, if it was in fact full payment for the stock as alleged in the complaint.

She