Cumming v. Johnson
| Decision Date | 19 November 1979 |
| Docket Number | No. 77-3871,77-3871 |
| Parties | 27 UCC Rep.Serv. 1096 Ian M. CUMMING, Plaintiff-Appellee, v. Glendon E. JOHNSON et al., Defendant-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kenneth C. Bornholdt, MacDonald, Halsted & Laybourne, Los Angeles, Cal., for plaintiff-appellee.
Edwin Paul, Gray, Gorham & Paul, Los Angeles, Cal., for defendant-appellants.
Appeal from the United States District Court for the Central District of California.
Before GOODWIN and SNEED, Circuit Judges, and JAMESON *, District Judge.
Glendon Johnson appeals a judgment of specific performance of an oral stock transfer agreement between Johnson's brother Franklin, who was acting as Johnson's agent, and the plaintiff, Ian Cumming. Johnson asserts that the district court lacked subject matter jurisdiction, 1 that enforcement of the oral agreement was barred by the statute of frauds, and that his wife's community property interest in the disputed stock could not be transferred under the trial court's order. We affirm the district court.
Johnson and his wife, Bobette Johnson, are Texas residents. Cumming is a Utah resident. All three are shareholders in Terracor, Inc., a Utah corporation. Cumming has been a director of Terracor since March 1970 and president of the corporation since September 1971.
In 1973 Terracor was involved in litigation with Avco Financial Services, Inc. Avco and other plaintiffs brought three actions against Terracor, naming Glendon, Franklin, and Bobette Johnson and others as individual codefendant-guarantors. In order to settle this litigation, Franklin Johnson reached an oral agreement with Cumming. Under this agreement, Glendon and Franklin Johnson and Roger Boyer, a third Terracor shareholder named in the Avco litigation, promised to transfer their Terracor stock to Cumming in return for Cumming's personal undertaking to settle the Avco suits.
Cumming had not been named as a defendant in the Avco litigation, but his personal participation in the settlement negotiations became a necessary condition of Avco's agreement to settle. One of the terms of this settlement required Cumming to personally pledge to Avco 400,000 shares of Terracor stock that he owned and to give Avco a $550,000 note in return for various considerations and property. As part of the settlement, the parties to the Avco litigation also executed an Agreement of Dismissal and Release.
After the final settlement of the Avco litigation, Franklin Johnson and Roger Boyer transferred their Terracor shares to Cumming. Glendon Johnson, however, refused to transfer the 132,563 shares of Terracor stock, represented by Terracor share certificate No. 1005, that are registered in his name, arguing that his brother Franklin lacked the authority to bind him under the November 1973 oral agreement and that, even if Franklin Johnson was authorized to act as his agent, the oral agreement was unenforceable.
Cumming filed this diversity action to obtain possession of certificate No. 1005, which was in escrow in a Los Angeles bank. The district court in due course entered the challenged judgment divesting Johnson of title to the Terracor shares and vesting title in Cumming.
Johnson's contention that the district court lacked subject matter jurisdiction is wrong. The amount in controversy does exceed $10,000. While the stock sought to be recovered by Cumming had a negative book value at the time this action was filed, 2 the trial court heard testimony that a large block of Terracor stock had been sold for 20 cents a share in 1973, when the company's financial situation was similar to its condition at the time of this litigation. Taking this figure as a rough estimate of the "market value" of the shares (Terracor was not traded publicly), it is apparent that the value of the disputed stock exceeded $10,000.
Johnson argues next that, even if the district court had subject matter jurisdiction, the oral stock transfer agreement should not be enforced because it violates the statute of frauds. The trial court found that Cumming's complete performance of his obligations under the oral contract took the contract out of the statute of frauds. We agree.
Under the section of the California Commercial Code which defines the statute of frauds governing securities transactions, a contract for the sale of securities may be enforced if "(d)elivery of the security has been accepted or payment has been made * * *." Cal.Com.Code § 8319(1)(b) (West 1964). 3 The district court relied on this provision and concluded that Cumming's participation in the Avco settlement constituted "payment" for the disputed Terracor shares. Johnson disputes this finding, contending that Cumming's performance was not payment because no money or other property passed directly to him.
California law does not support so restrictive a definition of "payment". While it is true that section 8319 of the California Commercial Code refers to section 1478 of the California Civil Code as a definitional cross-reference and that that section defines payment as "(p)erformance of an obligation for the delivery of money only", California courts have broadly construed this definition in applying Cal.Com.Code § 8319 and its companion provision, Cal.Com.Code § 2201, the statute of frauds for sales.
In Sousa v. First California Co., 101 Cal.App.2d 533, 225 P.2d 955 (1950), the court defined "payment" as follows:
"Payment is the performance of an obligation for the delivery of money, § 1478, Civil Code. The performance may take place by the delivery and acceptance of other things of value instead of money, but there is only payment when the money or other things of value are given and accepted in discharge of the obligation in whole or in part. * * *
"An inspection of the principal dictionaries shows that the general meaning of 'payment' is * * * the discharge of an obligation or the giving of compensation. * * *" 101 Cal.App.2d at 537, 225 P.2d at 959-60 (citations omitted).
See Strain v. Security Title Insurance Co., 124 Cal.App.2d 195, 268 P.2d 167 (1954).
We conclude that under the broad "discharge of an obligation" language of Sousa v. First California Co., supra, Cumming's personal participation in the settlement constituted "payment" under Cal.Com.Code § 8319(1)(b). Johnson received something of value: release from personal liability in the settlement of the Avco litigation. There is no serious dispute that Cumming produced the settlement. The settlement was the precise benefit which Johnson sought in contracting, through his agent, with Cumming. 4 Whether Johnson received this benefit directly from Cumming or indirectly, as a result of Cumming's actions, is immaterial. 5
Johnson also raises a related argument, that even if Cumming did transfer something of value (to Avco) in effecting the settlement, Cumming made no "payment" to Johnson. Cumming, of course, gave consideration to third parties, the Avco litigation plaintiffs, in return for the settlement. 6 But part of Avco's settlement, given in exchange for Cumming's performance, benefited Johnson.
Looking to California law, we find no cases dealing with payment to third parties under Cal.Com.Code § 8319. On at least one occasion, however, a California court has held that delivery of goods to a third party designated by the buyer and acceptance by that party constituted "acceptance" by the buyer, taking the contract out of the sales statute of frauds. Dairyman's Cooperative Creamery Ass'n v. Leipold, 34 Cal.App.3d 184, 188, 109 Cal.Rptr. 753, 755-56 (1973). The circumstances in that case are sufficiently analogous to those here, where the Avco plaintiffs were designated by one contracting party (Johnson) through his agent, as the recipients of the other contracting party's performance-"payment", to warrant rejection of Johnson's arguments.
Johnson next argues that the district court could not order specific performance of the stock transfer agreement, because his wife Bobette has a community property interest in the disputed shares that could not be conveyed without her consent, and because Mrs. Johnson was not a party to this litigation. As will be seen, the success of these arguments hinges on whether Cumming had actual or constructive notice of any interest Bobette Johnson had in share certificate No. 1005.
Bobette Johnson had a presumptive community property interest in the Johnson Terracor shares. "Property possessed by either spouse during or on the dissolution of marriage is presumed to be community property." Tex.Fam.Code Ann. § 5.02 (Vernon 1974). Glendon Johnson possessed the shares during his marriage. Because Cumming offered no evidence that Johnson acquired the shares with premarriage assets, or other rebuttal, the statutory presumption controls. Not only did Mrs. Johnson have a community property interest in the disputed shares, but she had a joint control interest as against her husband. Texas Family Code § 5.22 defines the instances, as between spouses, in which community property is under the sole management of one spouse, and none of those exceptions applies here. 7
The purpose of section 5.22 of the Texas Family Code was to eliminate unilateral conveyance and virtual representation of one spouse's community property interests by another. See Comment, 6 Tex.Tech.L.Rev. 1185 (1975); Note, 52 Tex.L.Rev. 1410 (1974). Thus, in most cases, one spouse cannot transfer the other's interests in property without his or her consent, and a court cannot determine the status of community property in the absence of either spouse. See Williams v. Saxon, 521 S.W.2d 88 (Tex.Civ.App.1975); Cooper v. Texas Gulf Industries, 513 S.W.2d 200 (Tex.1974).
If our inquiry were to end here, the district court could not compel the transfer of the Terracor shares. While Franklin Johnson's power of attorney allowed him to act for both Glendon and Bobette Johnson, he contracted with Cumming only to...
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