Van Alstyne v. H. & T. C. R'y Co. , 56 Tex. 373 ( 1882 )

Bonner, Associate Justice.—

The verdict of the jury in this case, having been based upon a special finding, dispenses with the consideration of several points raised in the voluminous record.

Assigned errors numbers 1, 2, 3, 4 and 12 are pretermitted in the brief of appellant. Numbers 7, 8, 9, 10 and 11 may be appropriately grouped with number 5, as the determination of the latter will decide the others. We therefore find it necessary to consider only numbers 5 and 6.

Following the order in appellant’s brief we will first dispose of number 6, which is, that “The court erred in not construing in his charge the resolutions of July 6, 1874, and May 3, 1875, in relation to the action of the defendant company in authorizing an increase and exchange of its certificates of stock. This was documentary evidence, and its legal effect should not have been left to the determination of the jury. They should have been construed by the court.”

It is a sufficient answer to this to say that, under the repeated decisions of this court, a judgment in a civil case will not, as a general rule, be reversed for a mere failure on the part of the court below to cover in the charge every phase of the case, when attention is not called to the omission by charges asked or otherwise. Ho charge was asked in this case.

The fifth assigned error is that: “The court erred in the following portion of its charge, viz.: Unless under the proof and the law given you in charge you find that plaintiff, as such executrix, has secured payment and satisfaction for the ten per cent: paid in by taking and receiving as payment and satisfaction stock called ‘watered stock’ — i. e., eight shares of new for one share of old, authorized under resolution of the stockholders’ meetings of defendant company; but the proof on this subject must satisfy you that the ten per cent, stock was intended by plaintiff and defendant company to be included in the issuance of said (eight) for one (watered stock); if such was the intention of those entitled thereto and the defendant company,. then you should so find, and in that case find for defendant,, and state that you so find by your verdict.”

The preceding part of that paragraph of the charge, of which the above is the conclusion, instructs the jury in effect that if the deceased, W. A. Van Alstyne, paid in the ten per cent, on his original amount of stock, as contemplated by the circular letter of Hutchins and Paige, and if. such payment was accepted by the new company in compliance with its resolutions on the subject, that this entitled him to stock at par for the amount of this ten per cent, (being the amount of stock claimed in this suit); and that if the company refused upon demand to issue the same, it was liable in damages for the value thereof with interest, unless, etc., as set out in the above assignment.

The verdict of the jury was based upon this part of the charge, they having found for the defendant on the ground that plaintiff had received satisfaction in the issue of stock called watered stock eight for one.

The objections to the charge are that “The law as given was not applicable to the facts of the case. There was no proof of any exchange of the plaintiff’s stock.”

The material question in the case then is, was there evidence to support the finding of the jury ? If so, then on the facts and under the charge the verdict should be affirmed.

At a stockholders’ meeting May 30, 1871, the following resolution was passed:

Resolved, That the capital stock of the company is hereby declared to be only such as has heretofore been subscribed for on the books of the old company and paid for, and on which the additional installment of ten percent. has been paid on the books of this company, and the stock subscribed for and issued to Wm. E. Dodge; and that such only is entitled to be registered on the books of the company, and new certificates therefor to be issued to such persons as have become owners thereof.

By unanimous resolutions of stockholders’ meeting passed July 6, 1874, and which were substituted by unanimous resolutions passed May 19, 1875, it was ordered that the capital stock of the company be increased to $10,000,000, and the executive officers were authorized and directed to “issue and deliver to the stockholders, or their assigns, certificates for eight shares of the capital stock of the company for, in lieu and instead of every one share by them respectively held prior to the adoption of the aforesaid proceedings of July 6, 1871,” etc.

Previously thereto the Van Alstyne stock had been represented and voted in the meeting of the stockholders by shares varying in number, but which seem not to have exceeded six hundred and ninety-eight at any one time.

On May 6, 1872, in pursuance of a previous resolution of the company, the secretary in his report of a correct list of the stockholders gave total number of shares at six thousand one hundred and forty-two and that of Van Alstyne at four hundred and ninety-six.

Subsequently, July 13, 1872, at a stockholders’ meeting it was resolved that the secretary should spread on the minutes two classifications of the stock of the company.

1. All stock issued prior to April 2, 1861, and all since on subscription of present holder, or upon transfer accompanied by surrender of the original certificate, or affidavit of its loss.

2. To embrace all other issues of stock.

July 31, 1872, stockholders’ meeting. Present in person or by proxy. W. A. Van Alstyne, four hundred and ninety-six shares.

Secretary reported classification of stock, seven thousand one hundred and thirteen shares, Van Alstyne, W. A., four hundred and seventeen and one-half first class, two hundred and forty-five and one-half second class; six hundred and sixty-five shares.

There was testimony that some of the stock claimed by the estate of Van Alstyne was in dispute.

At a stockholders’ meeting held May 3, 1876, after the resolution of May 19, 1875, to increase the stock eight for one, the estate of Van Alstyne represented four thousand nine hundred and forty-four shares of stock, showing that new stock had under this resolution been received by the estate.

It appears from the record that no stockholder has ever received any of this new stock for the amount of the ten per cent, paid in on the old stock, and Mrs. Van Alstyne does not appear to have claimed it at the time she received her new stock on the above basis.

A. S. Richardson, who had been secretary of the company since 1867, and who was the keeper of its stock-books, records and papers, testified that he knew of no claim ever made for this so-called ten per cent, stock until application for this in the present suit. No ten per cent, stock is shown on the books in any manner, shape or form. It has never been on the books of the company. From the time he became connected with the company the stock that was recognized by the company as controlling and operating the road during all the time of his connection with it was the stock described in the resolution of May, 1871, and upon which the ten per cent, was paid, together with such subsequent stock as was sold to Wm. E: Dodge. In all the proceedings read from the minutes and records this ten per cent, stock is never referred to in any manner or form.

There is also testimony tending to prove that Mrs. Van Alstyne stated that she had transferred all her interest in the company to Charles Morgan.

Under the charge of the court to the jury, that the testimony must satisfy them that the ten per cent, stock was intended by plaintiff and defendant company to be included in the issuance of said eight for one watered stock, and that if such was the intention, then they should find for the defendant and so state in their verdict, we are of opinion that the testimony was sufficient to sustain the verdict that the plaintiff had “ received satisfaction in the issue of stock called watered stock eight for one.”

[Opinion delivered March 21, 1882.]

To our minds, the verdict and judgment for the defendant could have been satisfactorily, if not conclusively, based upon the acts of the legislature, «which did not authorize the issuance of stock for the ten per cent, paid in, as well, as upon the issue found' by the jury, as it does not appear that Van Alstyne paid in his ten per cent, until long after the passage of the acts, and not until after the time had expired to pay it in under the circular letters of Hutchins and Paige.

There being no apparent error in the judgment below, and as it seems from the record that the defendant would have been fully entitled to the judgment upon another issue, the same is affirmed.

Affirmed.