McCoy v. May , 255 Wis. 20 ( 1949 )

The plaintiffs sued to enforce specific performance of an option to purchase "not more than fifty per cent of the stock of the corporation so issued to first parties." The trial court ordered judgment requiring the defendant to transfer to the plaintiffs sixty-seven and one-half shares of the stock out of the corporation. The court in the majority opinion affirms the trial court's decision.

I have no quarrel with the presumption that where competent evidence and incompetent evidence are both received it will be assumed that the trial court was influenced solely by the competent evidence and ignored the incompetent. I do believe, however, that this is a presumption which may be overcome. The trial court in its opinion, referring to the original agreement entered into between Carmelete Keady and Mary McCoy, as sellers, and Elwood May and Peter McCoy, as buyers, said:

"I am satisfied it at all times was the intention of both May and McCoy that each was to have an equal interest. The original purchase agreement of October 16, 1946, bears out my conclusion in that respect. Add to that the testimony of McCoy's sister and the picture is revealed. The surrounding facts and circumstances come close to making the agreement a contract of sale rather than an option."

The testimony of Miss McCoy referred to, which was taken over the objection of the defendant, was in substance:

"Of course I would not sell the business that cheap only that I expected my brother to have a half interest in the business, otherwise I would not sell it."

As pointed out by the defense, the sole question in the case being whether the plaintiffs had exercised the option under which they had a right to acquire up to one half of the stock held by the defendant and his wife, this and similar testimony was incompetent and should not have been received. To say that it is presumed that the trial court was not affected by it necessitates ignoring the statements of the trial court quoted above.

If the court was almost satisfied that the defendant in effect held half of the stock which he purchased from Carmelete Keady and Mary McCoy for plaintiffs, then plaintiffs had very little burden in establishing that they had exercised the option to buy half.

I am convinced that the trial court was influenced by the incompetent evidence to the prejudice of the defendant, and that the defendant is entitled to a new trial upon proper evidence only.