Cleveland v. Burnham

• Citation: 25 N.W. 407,64 Wis. 347
• Parties: CLEVELAND AND OTHERS v. BURNHAM, IMPLEADED, ETC.
• Decision Date: 03 November 1885
• Court: United States State Supreme Court of Wisconsin

64 Wis. 347

25 N.W. 407

CLEVELAND AND OTHERS

v.BURNHAM, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed November 3, 1885.

Appeal from county court, Milwaukee county.E. Mariner and Geo. H. Noyes, for appellants, Charles W. Cleveland and others.

Smith & Faben, for respondent, Jonathan L. Burnham, impleaded, etc.

ORTON, J.

On the twenty-first day of November, 1881, a judgment was entered in the above-entitled action in favor of the plaintiffs severally, for the sums of $18,060.59, $17,509.40, and $28,637.80, against the defendant the Marine Bank of Milwaukee. At that time all the assets of said bank had been collected by a receiver and converted into money, and the net proceeds thereof amounted only to the sum of $4,337.25, which by said judgment was applied in part payment thereof, and of the said claims of the plaintiffs, proportionably, leaving a large deficiency in their favor against the bank, and over and above the total amount of the stock held therein by the stockholders thereof. In this branch of the case against the defendant Jonathan L. Burnham there was no contest as to the fact that he was the owner of at least $3,000 of stock in said bank, and there was no question but that he was liable to the plaintiffs for such amount. The main contention was that he was not the owner of certain other $2,000 of said stock, and liable therefor, as charged in the complaint. In respect to this stock the county court found, as facts, that the said Burnham agreed to purchase of Silkman & Field $2,000 of stock owned by them, and paid therefor in brick, which was used in a building they were constructing; that Silkman & Field and said Burnham went to the bank in order to transfer said $2,000 stock to said Burnham, and thereupon the said Silkman & Field delivered their certificate for said $2,000 stock to said bank, which executed a certificate for $2,000 of its stock and delivered it to said Jonathan Burnham. Said certificate was in the usual form of the stock certificates of said bank, and in the space left therein for the stockholder's name the said bank inserted the name of George Burnham and delivered it to Jonathan L. Burnham, who expected at the time that his own name would be inserted therein, and took the certificate away, and has ever since retained it, and did not discover that it was so made out in the name of George Burnham until after the judgment was entered in this case on November 21, 1881; that said George Burnham never purchased or paid for said $2,000 of stock, or any stock in said bank; never held or knew of said certificate, or made any claim on the same, or the shares of stock represented thereby; that said defendant Jonathan L. Burnham never sold or transferred the stock so agreed to be purchased as aforesaid by him of Silkman & Field, but held the same right and title, if any, to the same at the commencement of this action as at the time of receiving said certificate of $2,000. It does not appear that the defendant Burnham ever drew any dividend upon said stock, nor that any dividend was ever paid to any stockholder of said bank, nor does it appear that he performed any act of ownership beyond what appears above, save that he attended a stockholders' meeting and voted on some stock, but whether he ever voted upon any stock beyond the said $3,000 does not appear.

It was further found that on the fifth day of July, 1859, there was filed in the office of the register of deeds of Milwaukee county, a statement signed and verified by the oaths of the then president and cashier of said bank, purporting to give a true and correct list of the names and residences of the shareholders in said bank, and the number of shares and amount of stock owned by each on the first day of July, 1859. The said statement is as follows, towit: “The following is a statement of the names of the shareholders in the Marine Bank of Milwaukee, together with the residence and number of shares owned by each stockholder on the first Monday of July, 1859, a banking association organized under an act of the legislature of the state of Wisconsin, entitled ‘An act to authorize the business of banking,’ approved April 9, 1852, and made in pursuance of the thirty-first section of said act,” which said statement recited, among others, the name of Jonathan L. Burnham as a shareholder in the amount of $5,000, and in which neither the names of George Burnham nor those of Silkman & Field appear, and was the last statement filed in said register's office by or on behalf of said defendant bank, and Jonathan L. Burnham never had any other stock than such $3,000, and $2,000 agreed to be purchased from said Silkman & Field. The stock and transfer and other books of said bank, and the records thereof, have been lost, and the same could not be produced upon the trial of this action, and it does not further appear what entry, if any, of such transfer by Silkman & Field was made upon the books of such bank.

The conclusion of law upon these facts is “that Jonathan L. Burnham is not the holder of the stock in said bank represented by said certificate so made out in the name of George Burnham, which he, the said Jonathan, received, and is not liable in this action as the holder thereof.” This conclusion of law is preceded by the conclusion of fact “that the attempted transfer of said $2,000 stock by said Silkman & Field was not completed, and did not transfer the title thereto to the defendant Jonathan L. Burnham.” The evidence is not reported, and the case is to be heard and disposed of upon the above findings of fact alone.

A preliminary question is raised by the learned counsel of the respondent, whether any inferences and conclusions can be drawn by this court from said facts beyond what are expressed in and by the facts themselves. If this court cannot be allowed to draw any reasonable inferences and logical conclusions which the facts found by the county court may warrant, then it has really nothing to do with the case, and the conclusions of both law and fact made and filed by the county court are conclusive. We had supposed that the object of an appeal to this court, in such a case, was to obtain a reversal of the conclusions of law drawn by the court below from the facts, whether such facts appeared merely from the evidence, or by the findings of the court. The county court found as a conclusion of fact, from the facts stated, “that the attempted transfer of said $2,000 of stock was not completed, and did not transfer the title thereto to the defendant Jonathan L. Burnham, and that he is not the holder of the stock,” etc. This conclusion is what the appellant seeks to reverse, and it presents the only important question arising from the facts found, to be decided by this court.

The contention that this court cannot draw its own inferences and conclusions from the facts on such an appeal is too technical to be even specious or plausible.

The learned counsel further contends that the facts cannot be considered as proof that the stock certificate issued by the bank in the name of George Burnham instead of Jonathan L. Burnham was so made by mistake, and that such mistake cannot be corrected in such an action so as to make said certificate any evidence of the title of Jonathan L. Burnham to said stock. There is no principle better settled than that when a grant or any instrument is made to a person by a wrong Christian name, either by mistake or fraud, it may be proved by parol and corrected in any action, legal or equitable. In McMahon v. McGraw, 26 Wis. 614, in an action of ejectment, the legal title was held by a tax deed taken by and in the name of the defendant. The plaintiff was allowed to prove, without pleading it, that the defendant took the title when agent for the plaintiff, and in violation of his trust, and that, therefore, it inured to the benefit of the plaintiff. In Staak v. Sigelkow, 12 Wis. 259, it was shown, in a suit for the title and possession, that a certain deed was executed by mistake to Louis, instead of the correct Christian name, Arnold, Staak, by proof that he was the purchaser. In that case the learned counsel of the appellant therein, Messrs. Smith & Solomon, cited many cases where such a mistake might be corrected in the same action involving the title, and Chief Justice DIXON, in his opinion, examined the question very fully, and cites numerous cases at law as well as in equity where such a mistake was allowed to be corrected by parol evidence, and in illustration of the maxims ambiguitas verborum latens verificatione suppleter, and nil facit error nominis cum de persona constat, he cites cases all along back to Counden v. Clerke, Hob. 30; Bac. Max. 23; Altham's Case, 8 Rep. 155; Bro. Confirmation, 30; Bro. Nosme, 9; and 1 Co. Litt. note 3, p. 24 b.

In Bancroft v. Grover, 23 Wis. 463, a note wrongly described in an award of arbitrators as having been given to the wrong person was allowed to be corrected by parol evidence. In Begg v. Begg, 56 Wis. 534, S. C. 14 N. W. Rep. 602, in an action of ejectment, parol evidence was held admissible to show whether the grant was intended to be made to James Begg, Jr., or James Begg, Sr. In the Goods of Brake, 32 Eng. Rep. 601, parol evidence was allowed to prove whether William McC. or Thomas McC. was intended as the executor by the testator in his will. In Hawkins v. Garland, 76 Va. 149, 44 Amer. Rep. 158, a bequest made to S. G., son of Capt. J. F. S., was intended to be made to S. G., son of Capt. J. F. H., and it was allowed to be shown by parol evidence; and so, in Careless v. Careless, 1 Mer. 384, where the bequest was made to the testator's nephew Robert, the son of Joseph C., it was allowed to be shown that his nephew Robert, the son of Thomas, was intended, and that Joseph was written instead...