Boak v. Robie
| Decision Date | 01 December 1926 |
| Docket Number | No. 3692.,3692. |
| Citation | 16 F.2d 33 |
| Parties | BOAK v. ROBIE. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John R. Montgomery, of Chicago, Ill., for plaintiff in error.
James J. Courtney, of Duluth, Minn., for defendant in error.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
This action was brought to enforce an alleged liability against plaintiff in error, herein called defendant, growing out of a 100 per cent. assessment on 90 shares of capital stock issued by the Northern Fish Company, a Minnesota corporation. Plaintiff's theory was that defendant subscribed for and became the owner of 90 shares of this stock; that under the laws of Minnesota (article 10, § 3, Minnesota Constitution) such stockholder became liable to an assessment of the amount of such stock ($9,000) upon the company's becoming insolvent.
Defendant contends that he never subscribed for any stock, and was never the owner of any stock, in the Northern Fish Company. He further takes the position that the indebtedness of such company at the time it is alleged he acquired the stock was never shown, and that his liability terminated long before the liquidation proceedings were instituted in the Minnesota state court, because of an alleged retransfer of the stock to the president of the company; that the principal creditor of the Northern Fish Company was its president, whose conduct now precludes him from enforcing his claim against defendant.
The parties in writing waived a jury trial, and the court found against the defendant. Judgment was rendered in favor of plaintiff for $9,000 and interest from September 30, 1920, the date when the assessment became due and payable.
It appears from the testimony that the Northern Fish Company, a Minnesota corporation, was organized to deal in the fresh fish business; that defendant was actively connected with R. B. Boak & Co., a corporation engaged in the salt fish business. Defendant's father was the president and principal stockholder in the latter company.
Negotiations were had between defendant and one McDougall, president of the Northern Fish Company, whereby either the defendant or R. B. Boak & Co. advanced money to and received stock from the Northern Fish Company. This stock was issued to one Thompson, McDougall's secretary, who in turn immediately assigned the certificates in blank and mailed them to defendant, who deposited them with the treasurer of R. B. Boak & Co. Thompson never paid anything for the stock, and her name was issued to satisfy Boaks' desire to avoid any record disclosure of their interest in the fresh fish business. The checks for the stock were issued by R. B. Boak & Co., and were paid from its funds.
Counsel for defendant has made a persuasive argument in support of his urge that the stock was transferred to and belonged to R. B. Boak & Co. rather than to defendant. But after reading all of the evidence, including numerous letters, we are convinced that the court's finding that "defendant became the legal and actual owner of said 90 shares of stock" is supported by competent evidence.
It would...
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