American Sur. Co. of New York v. Duvall
Decision Date | 30 March 1921 |
Docket Number | Civil 1825 |
Citation | 22 Ariz. 261,196 P. 457 |
Parties | AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, and CERRO COBRE DEVELOPMENT COMPANY, a Corporation, Appellants, v. WILLIAM B. DUVALL, Appellee |
Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Santa Cruz. W. A. O'Connor, Judge. Judgment modified and affirmed.
Mr. F M. Hartman and Mr. Selim M. Franklin, for Appellants.
Mr John B. Wright and Messrs. Duffy & Purdum, for Appellee.
William B. Duvall brought this suit in the superior court of Santa Cruz county in December, 1916, against the Cerro Cobre Development Company and the American Surety Company corporations, alleging two causes of action. In the first, he seeks to recover five thousand dollars upon an injunction bond, and in the second, fifteen thousand dollars upon a supersedeas bond, both given in a case entitled "Cerro Cobre Development Company, a Corporation, and H G. Luphold, Plaintiffs, v. W. B. Duvall, Charles H. Kittredge, and West Coast Copper Mines Company, a Corporation, Defendants," which was filed in the superior court of Santa Cruz county in April, 1914.
In December, 1910, W. B. Duvall had filed a complaint in the superior court (then territorial district court) of Santa Cruz county, against the Cerro Cobre Development Company, a corporation, in which he sought to have himself declared the owner of 1,000,000 shares of the capital stock of the West Coast Copper Mines Company, the certificate for which had been issued to "W. B. DUVALL, TRUSTEE." In its answer, the Cerro Cobre Development Company denied ownership of this stock in Duvall, and asked in a cross-complaint that it be declared the owner thereof. The case was tried in April, 1914, resulting in a judgment, on May 8, 1914, in favor of Duvall. An appeal was taken to this court, which rendered its decision in March, 1915, affirming the judgment. 16 Ariz. 485, 147 P. 695. It was again affirmed in October, 1916, on rehearing. For convenience, it will be referred to as case No. 1, and the action in which the bonds were given as case No. 2.
The plaintiffs in case No. 2, which was filed while case No. 1 was being tried, alleged that the original capital stock of the West Coast Copper Mines Company was two million shares of the par value of one dollar each, and that the Cerro Cobre Development Company was the owner of the one million shares which had been issued to Duvall as trustee, and, among other things, prayed for the appointment of a receiver for the West Coast Copper Mines Company, pending the trial, and for a temporary injunction, restraining W. B. Duvall from selling or transferring any of the said one million shares of stock or of the remaining one million shares of treasury stock which had also been issued to him. On July 6, 1914, two months after it had been adjudged by the superior court of Santa Cruz county, in case No. 1, that Duvall was the owner of this one million shares of stock, a receiver was appointed and a writ of injunction ordered issued in case No. 2, restraining Duvall from selling or in any wise transferring any of the said one million shares of stock, upon the giving by the plaintiffs in that case of a bond in the sum of five thousand dollars, which was done August 8, 1914, with the American Surety Company as surety. On May 22d following, this injunction was ordered dissolved by the superior court, upon motion of Duvall, his ownership of the one million shares of stock having been upheld by the Supreme Court a short time previously, in case No. 1; but the Cerro Cobre Development Company, one of the plaintiffs therein, desiring to continue the injunction in effect until a rehearing in case No. 1 could be had, or perhaps until the order itself could be reviewed in case No. 2, appealed from the order of dissolution, and on May 25, 1915, gave a bond superseding it, in the sum of fifteen thousand dollars, with the American Surety Company as surety. After the judgment in case No. 1 had been affirmed on rehearing, the Cerro Cobre Development Company dismissed, on December 13, 1916, case No. 2, and on December 21st thereafter this action was filed by Duvall to recover what he claims to have been damaged as a result of his being restrained from selling his one million shares of West Coast Copper Mines Company stock.
The case was tried before a jury, which returned a verdict for the plaintiff in both causes of action -- in the first, for five thousand dollars, with interest; and in the second, for fifteen thousand dollars, with interest. Judgment was entered on the verdicts for twenty thousand dollars, with interest on five thousand dollars from August 6, 1914, and on fifteen thousand dollars from May 24, 1915, the dates of the representative bonds. From this judgment and the order denying a motion for a new trial defendants appeal.
The first error assigned is the court's refusal to give the following instructions:
Appellants contend that these instructions should have been given because there was a total lack of evidence showing, or even tending to show, that plaintiff suffered any damage, either as a result of the issuing of the injunction originally or by reason of the stay bond's continuation of it after the order of dissolution. They should have been given, if there was no evidence of damage, but if any substantial proof of this allegation was adduced it was for the jury to say whether the plaintiff had been actually damaged in the manner alleged, and, if so, to what extent. It is only where there is a total lack of evidence, or where the evidence so greatly preponderates one way that there can be no question as to what the verdict should be, that a court is justified in giving a peremptory instruction of this kind. The weight of the evidence is always for the jury. The duty of this court, under these circumstances, is expressed in Rouillier v. Schuster Co., 18 Ariz. 175, 157 P. 976:
"The Supreme Court will not weigh the evidence to determine whether or not it would have reached a different conclusion from that of the trial court," but confines itself "to ascertain only whether or not the judgment is reasonably supported or justified by any substantial evidence."
The stock Duvall was restrained from selling was decreed by both the superior and supreme courts of this state to be his property. The injunction was in force from August 6, 1914, to December 13, 1916, a period of over two years and four months. The value of this stock at the time of the injunction and the extent of its loss in value, provided there was a loss, during the time it remained in force, were the inquiries toward which the testimony was largely directed. There was practically no evidence that the stock had a market value at any time, but the plaintiff contended and elicited testimony to show that its actual or inherent value, when the injunction issued, was large, as appeared from the company's assets and liabilities, but that it became worthless during the life of the restraining order. The appellants, however, claimed, and introduced evidence to substantiate their position, that the restraining order had no effect upon the value of the stock, because it had neither a market nor intrinsic value when the injunction was issued, nor afterwards.
The West Coast Copper Mines Company was organized by Duvall October 8, 1909, under the laws of Arizona, and its entire assets were five hundred and forty-eight thousand shares of the capital stock of the West Coast Smelting & Refining Company, another Arizona corporation with a capitalization of one million shares of the par value of ten dollars each. The assets of the West Coast Smelting & Refining Company were the capital stock of a Mexican corporation known as the "Tecolote Copper Company, S.A.," with a capitalization of five thousand shares of the par value of one dollar each. The assets of the Tecolote Copper Company, S.A., were the Tecolote mines and the Artemisa mine, together with a number of other claims "denounced" or located by Duvall, all in the republic of Mexico. These mines, for which Duvall testified he paid one hundred thousand dollars in gold, on which six hundred thousand dollars had been spent in development, and which, in his judgment, were a good investment at ten million dollars, when he left Mexico in the fall of 1913, gave to the stock of these various corporations whatever value it had. The West Coast Smelting & Refining Company had authorized the issuance of seven hundred and fifty thousand dollars in bonds, to secure which it had pledged the entire capital stock of the Tecolote Copper Company, S.A., though only about sixty per cent of these bonds had been sold. The par value of the five hundred and forty-eight thousand shares of West Coast Smelting & Refining Company stock -- a controlling interest -- owned by the West Coast Copper Mines Company in 1914, when the injunction was ordered issued, was five million four hundred and eighty thousand dollars. The balance of this stock was in the treasury, but, according to Duvall's testimony, was being sold in Amsterdam, France, New York, Boston, Providence, and other points, at five dollars per share -- one-half the...
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