Boswell v. Norton

¹² Stockbridge, J., delivered the opinion of the Court. Mr. Eugene L. Norton at the time of the happening of the events out of which this case arises was the president of the Munsey Trust Co. Mr. Thomas T. Boswell was interested in pushing the business of the Pocohontas Coal Mining Company, and he believed that it would conduce to the advancement of that company to have Mr. Norton’s name appear in the list of the directors, and accordingly transferred to him a share of the stock in order that he might be qualified for election upon the board. Mr. Boswell was further anxious to secure a more direct or larger interest upon Mr. Norton’s part in the coal mining business, and, therefore, discussed with him a number of times the sale to Mr. Norton of an additional amount of stock in the company. The recollection of these two people as to just the nature of the agreement, if any, which was ultimately arrived at, differs materially.

Mr. Boswell’s belief apparently was that Mr. Norton agreed to take twenty shares of the stock at 50, including the one share previously given him, and that this was a sale of a portion of the stock then owned by Mr. Boswell. Mr. Norton, on the other hand, seems to have been uncertain with regard to the investment and disposed to delay until some future time the final determination of whether he would or would not purchase stock in the company. Be that as it may, one fact is beyond dispute, that two additional certificates of stock, one for nine shares and one for ten shares of the capital stock of the company were made out and signed by the president and secretary and treasurer, and delivered to Mr. Norton, certifying that he was the owner of them, though none of the three certificates bore any date. This stock, Mr. Norton testified, he supposed to be from the treasury stock of the company, and not that of Mr. Boswell, individually.

The account which was made out by Mr. Boswell against Mr. Norton names December 12th, 1913, as the date of alleged purchase, though Mr. Boswell in his testimony fixes the month of November as the time when he gave Mr. Norton ¹³ the one share to qualify him for the directorate. By the account Mr. Morton is made Mr. Boswell’s debtor in the sum of $1,000 for the twenty shares, and there are credited against this two amounts of $250 and $150, respectively, as cash payments on account of the purchase, and the suit is brought to recover the remaining $600. Mr. Morton’s theory is that the $400 were not intended as in any sense payments on account of the purchase of the stock, but that as he had possession of twenty shares of the stock individually, in his capacity as president of the Munsey Trust Company, he gave his assent that Mr. Boswell might check against and overdraw his account with the Trust Company to the extent of the aggregate of these two items. An issue of fact, almost of veracity, was thus raised between the parties to the cause.

After the plaintiff and defendant on the