Hutzler v. Lord

Bryan, J., delivered the opinion of the Court. The plaintiff below' (now appellee) alleged that he sold the defendant thirty shares of the stock of the National Express and Transportation Company (partly paid up) and that the defendant neglected to have the shares transferred to himself on the books of the company, and that the company, through its assignee having called for an assessment on said shares, the plaintiff was compelled by suit to pay the same. He sought to recover from the defendant the amount so paid. On the supposition that the plaintiff’s averments were sustained by proper proof, we think that his claim was well founded.

The object of the sale of the stock must have been to denude himself of all interest in it, and to transfer it to the purchaser. Henceforth, all advantages arising from the ownership were to accrue to the purchaser, and all burdens arising therefrom were to be borne by him. It is simply impossible to suppose that, in making the contract of sale, the parties intended that the seller should pay future assessments for'the benefit of the purchaser. It would be just as reasonable to infer that he was to receive any future dividends which might be de ⁵³⁹ dared.

If, then, the seller was compelled by legal proceedings to pay assessments properly chargeable to the ownership of the stock, he paid them for the benefit of the purchaser, and ex aequo et bono, lie ought to be reimbursed. The plaintiff offered in evidence certain proceedings in the Chancery Court of the City of Richmond, Virginia, which showed that an assessment of thirty dollars per share payable to a trustee had been made on the stock of the company ; and also a judgment against him for $1080, being the amount of said assessment on thirty shares with interest, and a satisfaction of said judgment by paying a note for $150 with some interest and costs of suit; and also - a notice given by him to defendant to appear and defend the suit in which the judgment was rendered. It appeared that the Richmond Court had passed an order that if the stockholders should pay within a limited time twenty-five dollars a share on their stock, with such costs as had been incurred by the trustee in bringing suits, they should be released from the assessment of thirty dollars a share ; and that the benefit of this order had been extended to the plaintiff by agreement although he had not paid within the limited time. The plaintiff also offered in evidence certain entries in the books of Pennington and of L. J. Tormey & Co., who were stock-brokers.

These entries were offered for the purpose of showing the sale of the stock. The defendant took his first exception to the admission of the Chancery proceedings. The decree, of course, was not evidence against the defendant of any fact recited in it. It was necessary for the plaintiff to show that he had been compelled to pay this money in invitum, and to show in what way he had been compelled.

The decree was the initial point in the course of proceedings which culminated in the judgment against him. He was bound to show by competent proof every step in these proceedings. The certified copy of the decree was certainly evidence that it had been rendered; and we do not under ⁵⁴⁰ stand that it was offered for any other purpose. 1 Greenleaf on Evidence, sec: 588. . The defendant excepted to the evidence of the agreement’ by which the . note for $750 was (when paid) tobe a satisfaction of the judgment.

The suit was brought to the December Rule Day, 1888, of the Court of Common Pleas; on the eighteenth of January, 1884, the defendant received from the plaintiff notice to defend the suit, and, on the seventeenth of April, 1884, judgment was rendered against the plaintiff for $1080 and costs. This judgment the plaintiff satisfied by the payment of the note for $750 with interest and costs. If there had been unfairness or, collusion in the suit, as a matter of course the defendant would not be bound. Of this there is no suggestion.

The defendant had the right to take charge of the defence, and if he could have defeated the suit, he was at liberty to do so, and free himself altogether from liability on this account. The judgment shows the amount of the liability imposed on the plaintiff, as a charge on the ownership of the stock, and his settlement of it at a smaller sum was a clear gain to himself in the first instance, and ultimately to any one, who should be liable to reimburse him his expenditure. The third exception states that “the plaintiff having offered in evidence certain entries in the books of J. Pennington, a broker, and certain entries in the boobs of L. J. Tormey & Co., brokers, which entries are set out in the testimony in the fourth bill of exception, tending to prove the issue joined, the defendant objected to said evidence, unless the same was followed up by proof of delivery of said stock to the defendant, and the defendant having objected to said evidence &c., &c., the Court overruled the objection, &c.” This is-a very unusual