Abraham v. Mack , 130 Or. 32 ( 1928 )

Former opinion adhered to on rehearing June 25, 1929. ON REHEARING. (278 P. 972.) Appellant J.G. Mack has presented an earnest petition for a rehearing. His able counsel have made strenuous effort to demonstrate that the original opinion reported ante, p. 32 (273 P. 711), is erroneous. It is claimed in the petition for rehearing that there is no evidence in the record to support one of the many findings made by the jury. Specifically it is claimed that there is no evidence to support Finding No. 11, reading as follows:

"What was the total amount that J.G. Mack paid to Maurice Abraham? A. $5274.83."

It is also contended, in the brief supporting the petition for rehearing that since the jury found defendant Mack not to have promised to pay plaintiff's assignor interest, that there is no evidence to support so much of Finding No. 12 as includes interest. We have spent a great deal of time re-examining the evidence and re-reading the briefs and are constrained to hold that defendant has no cause for complaint on account of the original opinion herein. We find that Maurice Abraham, assignor of plaintiff, testified directly to the amounts owing to him by appellant J.G. Mack and the amounts received by him from the appellant.

In pages 96 and 97 of the transcript of testimony Maurice Abraham testified that he had several conversations with both defendants and "they said they would pay me my interest and the half of the overdraft that they had made in the corporation, that is their overdraft more than what I had drawn out; also in the partnership, my interest in that half, with interest, and that they would take the stock of merchandise, pay me my half interest in that * *." In pages 97 and 98 he also testified:

"In the corporation Mr. Mack and Mrs. Mack had drawn $11,253 and some cents more than I had * *. In the partnership the overdraft was $4662 and some cents."

He further testified that half of these two sums was the amount the defendants owed plaintiff.

"A. I thought, I started to say that, they said they would pay me the $2331 from the partnership, also the $5626 from the corporation, the twelve hundred and something my share of the inventory, and that was all merged in the one account, one understanding; it was not separated; it was not two claims against them, but it was all one claim based on the condition of this sale of 1917."

In page 109 Maurice Abraham again testified that the defendants promised to pay him one half of the $11,257 and some cents and also half of the excess that defendants had withdrawn from the partnership account amounting to $2,331.39. He also testified in page 110 that he was to have a half of the net collections. Meaning by that the one half of the accounts collected after paying the indebtedness of the firm and the corporation. In page 132 et seq. the witness Maurice Abraham testified to payments which were made by defendant-appellant. In page 132 the witness testified as follows:

"Well, there is several payments in December, of 1917, and payments along through 1918; and in May, 1921 there was a thousand dollars paid."

It is unnecessary to set out more in detail the payments. On cross-examination the witness testified as set out in the petition for rehearing. We cannot reconcile all of his testimony so as to make it harmonize. We observe, however, that oftentimes the witness and interrogating counsel did not understand each other. Many times the witness' answers were not responsive to the questions propounded to him. It is neither the court's function to reconcile his testimony nor to harmonize his inconsistencies. That is peculiarly a question to be answered by the jury. This court has no more right than the Circuit Court had to substitute its judgment for the findings of the jury.

It is also claimed that Finding No. 7 is inconsistent with the general verdict and must prevail over the general verdict. The Finding No. 7 is to the effect that Maurice Abraham did not sell any shares of the capital stock of the corporation J.G. Mack and Company to the defendant J.G. Mack. The shares of the stock constitute the evidence of the shareholder's interest in the corporation and his right to participate in the profits thereof: Thompson on Corporations (3 ed.), 352, § 3512 (3507). The special findings of the jury clearly disclose the jury believed Maurice Abraham had sold all of his interest in the corporation to J.G. Mack; that Maurice Abraham retained ownership of the shares of stock at the request of and to accommodate defendant J.G. Mack. The corporation did not continue in business after the adjustment between Maurice Abraham and defendant J.G. Mack in November, 1917.

The organization was maintained solely for the purpose of closing up its affairs and avoiding any possible complications which might arise in the collection of the debts owing to the corporation and the adjustment of any property matters which might arise in the course of winding up its affairs, if the corporation were dissolved. Maurice Abraham testified positively, and the jury must have believed his testimony, that he parted with all his interest in the corporation property, excepting his interest in the accounts owing to the corporation and that interest was only the excess of said accounts over the indebtedness of the corporation. The answer of the jury to the question 7, now under consideration, must be construed as meaning that Maurice Abraham did not sell the shares of stock simply, but parted with all the property interest he had in the corporation. He retained merely the shell. The meat all passed to appellant Mack. He retained the form while the substance passed to appellant Mack.

We are satisfied with the original opinion in this case and it is adhered to.

FORMER OPINION ADHERED TO.

ROSSMAN, J., did not participate.

BROWN, J., absent.