Colmary v. Crown Cork & Seal Co.

Thomas, J., delivered the opinion of the Court. In January, 1912, the appellant filed in Circuit Court Eo. 2 of Baltimore City his bill of complaint against his wife, Sadie McS. Colmary, and the Crown Cork and Seal Company, in which he alleged that he was the owner of ten shares of the capital stock of said company then standing in the name of his wife and represented by Certificate Eo. 177 for five shares, Certificate Eo. 504 for four shares and Certificate Eo. 318 for one share; that he subscribed for the five shares represented by Certificate Eo. 177 in May, 1892, and subsequently purchased the one share represented by Certificate Eo. 318 in November, 1892, and the four shares represented by Certificate Eo. 504 in August, 1895 ; that he paid for the stock with his own money and caused the certificates therefor to be issued in the name of his wife, with whom he was then living, but that ho did not intend the stock to be a gift to his wife, and that he retained absolute ownership and control of the same, collecting the regular and extra dividends which were paid from time to time, up to the time of his separation from his wife in 1908; that in causing the certificates to be issued in the name of his wife, it was his intention, while retaining complete control and ownership of the stock during his life, to allow it to become the property of his wife at his ⁴⁷⁸ •death, in the event that he did not dispose of it, and that he 'had no other intention “and especially had no intention of making a gift of” the stock to his wife; that as the result of “domestic differences” he and his wife separated, and that .at the time of the separation, on the 19th of November, 1908, his wife took possession of the certificates and still retains possession of them, claiming to be the owner of the stock; that he did not bring this suit sooner because of a suit by Joseph T. Fanning on certain promissory notes of A. HColmary & Co., payable to the order of his wife, involving “substantially the same questions,” but as that suit had not been brought to trial, and the Crown Cork and Seal Company was about to declare a large dividend on its capital stock which would be collected by his wife, and as his wife was “without financial responsibility” and he would not be able to recover back the dividend on the stock, he prayed for a •decree declaring him to be the owner of the stock; requiring his wife to make a proper assignment thereof to him; enjoining her from disposing of it or collecting the dividends therein, and enjoining the company from recognizing any one except him as the owner of the stock. An injunction was issued as prayed, and thereafter the Crown Cork and Seal Company answered the bill, admitting that the stock stood in the name of Mrs. Colmary, was represented by the certificates mentioned in the bill, and that the dividends thereon had been paid to her up to the time of the issuing of the injunction.

Mrs. Colmary, in her answer .admits that the stock was paid for by the plaintiff, but avers that he caused the same to be issued in her name with the intention of making an absolute gift of the same to her’, and that upon receiving the certificates he delivered them to her as a gift'to her, to be held by her as her property; that ever ■since the delivery of the certificates to her she has retained ■complete and absolute control over the same and collected the dividends thereon, except the dividend declared in February, 1908, to the time of the filing of the bill of complaint. ⁴⁷⁹ Slio denies that he retained ownership or control of the stock or that he collected the dividends thereon, hut she admits that she endorsed some of the dividend checks and handed them to him in order that he might deposit them to her credit in savings banks in which site had at the time accounts standing in her name, to the credit of which moneys given her from timo to time by hqr husband were deposited by Iter, or by him for her. The answer further alleges that she has never seen the check for the dividend declared in February, 1908, and that she does not know to whom it was paid or that it was paid to any one; that it was not the intention of Iho plaintiff, in causing the stock to he issued to her and in delivering the certificates to her, to retain any ownership.of or control over the same, hut that the issuing and delivery of rho certificates to her was an absolute gift to her, and that he told her at the time he delivered the certificate to her that he gave her the stock as her “absolute and unqualified property” ; that their separation was due to the fact of his having committed adultery, and his declaration to her at the time she discovered it of his intention to persist.in the commission of like offenses; that the questions involved in this case are not the same as those involved in the suit referred to in the bill, and that the hill in this case was not filed for the purpose stated, but that the subpoena was served upon 'her while she was confined to her bed in the hospital and suffering from a serious illness, and that the suit was brought for the purpose of harrassing and injuring her and depriving her from the income from the stock; that by reason of his refusal since their separation to contribute anything towards her support, and the injunction issued in this case, her means have become greatly reduced and “are becoming more so day by day.” The plaintiff testified that he was married in the year 1819, and at that time was employed by the firm of (hark, Parry & Co. In 1880 he became a member of the firm, and in 1890 the firm name was changed to Clark, Colmary & Co. In 1900 he bought out the interest of Mr. Clark, and since ⁴⁸⁰ then the business has been continued under the name of A. H. Colmary & Co. When asked by his counsel to> state the circumstances under which he purchased the stock represented by the certificates referred to; and what he did with it, he replied: “Well, I was solicited to subscribe for that stock by parties interested in the formation of the new company at that time, and I purchased it and had the stock issued in the name of Sadie MeShane Colmary. I felt that it was just as safe in her name as it would be in mine; but the dividends were always sent to my office by my direction, and after having the dividend checks properly endorsed—-I think sometimes I endorsed them myself for Mrs. Colmary—then I deposited those checks to my personal account in the National Howard Bank. So far as my knowledge goes there was not a single exception to that disposition of those dividend , checks.” After, stating that Mrs. Colmary had a bank account of her own in the Commonwealth Bank, he was asked to state “whether or not when” he had the stock issued in Mrs. Colmary’s name, he “intended to give her that stock or not.” The question being objected to, he was then asked what he did when he got the certificates, and he replied: “At that time I had no safe deposit box, and did not have a safe, and this safe that was given to me I did not inherit it from my father’s estate, as was stated; my mother had it for a number of years, and in making some changes in their apartment she thought I might need it and sent it to my office.

I appreciated it as a relic of my father; and at that time I kept every paper that I had, insurances policies, papers of every class and description, in this tin box which I paid for, and for which I hold receipt for the purchase of it.” He stated that the tin box was at their house, and when asked where he lived, he said: “We lived on St. Paul street for a while, then on Oak street and then on Madison street and then at the Severn. I did not specify that Mrs. Colmary should keep that box in any particular place. I bought it for keeping all my papers, insurance policies and every class of paper, and I kept them there and did not keep them anywhere else. ⁴⁸¹ Where Mrs. Colmary kept them was an immaterial matter to me, which particular part of the apartments.” His counsel then made the following offer: “We offer to prove hy this witness that at the time he ho-ught the stock he did not intend to make a gift of it to Mrs. Colmary, and did not give it to- her absolutely, and that she did not understand that it was to he her stock absolutely, hut that he reserved entire control and disposition over it; intending that in case he did not dispose of it during his life that it should pass to her after his death.” The Court sustained an objection to this evidence, and after counsel had reserved an exception, he asked the plaintiff when he purchased the stock, and he said he could not remember “definitely, but coadd tell by referring to—.” Counsel for the defendants said he had sent for the certificates of stock, and after they were produced, the plaintiff stated what dividends had been paid on the stock; that the company had never “discontinued the payment of dividends,5'' and that Mrs. Colmary had not received any of them. He then looked at the certificates produced and identified them as the ones referred to.

Certificate Ho-. 177 for five shares is as follows: “Humber 177. Shares, 5. Capital Stock, $1,000,000. Par Value, $100 each.

The Crown Cork & Seal Company of Baltimore City. This is to certify that Sadie McS. Colmary is entitled to five shares of the capital stock of The Crown Cork & Seal Company of Baltimore City, transferable ou the books of the company on return of this certificate, duly endorsed. Witness the seal of the company, attested hy the signature of the president, secretary and treasurer, this 4th day of May, 1892.

Joseph Freideiiwald, President. Franklin J. Morton, Treasurer. W. Painter, Secretary. (Corporate Seal)” ⁴⁸² Certificates No. 318 and No. 504 are “in the same form,” and all bear the following endorsement: “Baltimore, 189— For value received, within stock and certificate to hereby assign the Sadie MeS.

Oolmary. (L. S.) Witness: Wm. F. McAvoy.” The plaintiff further stated that Mrs. Oolmary’s signature was to the endorsement, and that it was witnessed by “a young man who was one of the firm,” and when asked when the certificates were endorsed by Mrs. Oolmary, he said: “I am under the impression the same dates that are on the certificates, I think they were endorsed promptly, and that they were endorsed in blank by her.” “At the time the certificates were delivered to me, they were delivered to me in person”; that they were endorsed by her at his request, “and the young man at the time of the first endorsement was bookkeeper in my office, and at the other periods he had been taken into the firm,” and that he witnessed Mrs. Oolmary’s signature at the plaintiff’s request. In reply to' the question of his counsel, “What was your purpose in having her endorse the certificates in blank, after1 they had been issued in her name,” he said, “I don’t remember that, I don’t remember the circumstances of it,” and in reply to the question, “What was done with the certificate,” he stated, “I took them home and handed them to' Mrs. Oolmary and asked her to take care of them, as I had done with all papers; this was no exception, I had just one place in this particular box where I kept my papers, wherever I happened to be living at the time.” He also testified that he had no stocks or bonds at that time, had no safe deposit box, and had no papers which he kept in a safe deposit box; that he did not have a safe at that time, but had this tin box which was at his apartments; that he did not know exactly where it was, “anywhere that Mrs. Oolmary elected to keep it was satisfactory to me; she was running the house end of it,” and that he put the papers in her charge. ⁴⁸³ On cross-examination, the plaintiff stated that after his marriage he lived with Mrs. Colmary’s father for a few months, and after that they hoarded for a while on St. Panl street.

After leaving St. Paul street they lived with Mrs. Colmary’s sister for several years, and from there they went to Mrs. King’s, on Madison street, to hoard, and remained there nntil they went to the Severn to live. He knew Mr. Renehan, who boarded at Mrs. King’s, but did not remember saying to him that be had given Mrs. Colmary ten shares of the stock of the Crown Cork and Seal Company, and bow proud be was of the good investment be bad made for her, “or words to that effect.” He knew Mr. Phillips, who was a boarder at Mrs. King’s, bnt did not remember making a similar statement to him. He knew' Mr. Gersting, but did not remember making such a statement to him, or telling either of the parties named, or stating in their presence, that lie bad given Mrs. Colmary “shares of stock in the Crown Cork and Seal Company.” He knew Mrs. King, but did not remember making such a statement to her or in her presence. He knew Miss McSchane, bis sister-in-law, very intimately up to 1908, but did not remember telling her, or stating in her presence, that he had given Mrs. Colmary the shares of stock referred to-, and that all he can say is, “I can’t remember having done it.” He know Mrs. McGraw, hut did not remember telling her, or saying in her presence, that he had given the stock to Mrs. Colmary.

He further stated that he could not remember when be got the safe bis mother gave him, but that it was about seven years ago-, or perhaps in 1907; that be got two keys with it and gave one of them to Mrs. Colmary, as he did with those papers to put it away with bis “personal property,” and kept the other; that be bought the tin box and paid $1.25, but could not say when he bought it; that bis father died twenty-four years ago; that his mother lived on Lombard street and afterwards moved to St. Paul street and from there to the Earl Court Apartments, and it was after she moved to the apartment that the safe was sent down to him; that there was a firm safe in his office, but be did not ⁴⁸⁴ have a private drawer or hox in it; that he frequently acted as teller at the annual meetings of the stockholders of the Crown Cork and Seal Company, and that in order to “qualify” him at those meeting's! he had a proxy which Mr. Oole, an officer of the company, secured for him, hut that he