Dailey v. Foster.
| Decision Date | 06 May 1913 |
| Citation | 17 N.M. 654,134 P. 206 |
| Parties | DAILEY ET AL.v.FOSTER. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where property is purchased, and the stock of a corporation is issued in payment therefor, under section 55, c. 79, Laws 1905, and a question arises as to whether the stock so issued is fully paid, and the court is called upon to determine the value of the property take in exchange for such stock, and the bona fides of the transaction, the true criterion is the “actual cash value” of the property, and the honest judgment of the directors thereon.
The “actual cash value” of property is the price which it will bring in a fair market, after fair and reasonable efforts have been made to find a purchaser who will give the highest price (citing 1 Words and Phrases, 152).
Where the burden of proof is on the plaintiff, and judgment is entered for the defendant, the presumption is that the court found all the material issues in favor of the defendant.
Findings of fact cannot be aided by inference or intendment, and silence upon a material point must be regarded as a finding against the party having the burden.
A party who does not request the court to find upon a particular issue, and who makes no objection, at the time, to the failure of the court to find thereon, waives thereby all objection to the deficiency of the findings in that respect.
Appeal from District Court, Bernalillo County; before Justice H. F. Raynolds.
Action by J. G. Dailey and F. F. Vallareal, doing business as the Zac Metal Company, against Nathaniel C. Foster. Judgment for defendant, and plaintiffs appeal. Affirmed.
See, also, 128 Pac. 71.
A party who does not request a finding on a particular issue waives any objections for failure to find in that respect.
Marron & Wood, of Albuquerque, for appellants.
Wade & Wade, of Las Cruces, for appellee.
The plaintiffs in the court below here seek to review the judgment of the Second judicial district court of the territory of New Mexico, dismissing the complaint upon the merits. The action was brought against the defendant, as a stockholder in the Torpedo Copper Company, to recover a debt owing to the plaintiffs by the corporation, upon the ground that, the corporation being insolvent, the defendant, not having paid for his stock, was under the statute liable to creditors of the corporation to the extent of the amount unpaid. The corporation was organized under the provisions of chapter 79, S. L. 1905, and thereafter the appellee, and others, transferred to the corporation certain property and contracts in exchange for all the capital stock of the corporation, of the par value of $2,000,000. The complaint alleged that the property, so transferred to the corporation in exchange for said stock, did not represent a value of more than $100,000, and that such fact was known to said appellee and the other parties at the time of the transfer, said parties all being directors of the company at said time; that said directors and said Foster, at said time, “believed and well knew that the value of the interest so conveyed was not worth the sum of $2,000,000, and the said directors did not then and there honestly believe that the fair and reasonable value of the interests so conveyed exceeded a tenth part of the sum of $2,000,000.” Appellee answered the complaint, setting up various defenses, only one of which need be here referred to, viz.: That said property was worth the said sum of $2,000,000, or at least the directors honestly so believed. It will thus be seen that a material issue in the case was the value of the property transferred, and the knowledge of the directors as to such value. Evidence was introduced by both parties, and different estimates were placed upon the value of the property at the time of the transfer. No request was made of the court to make specific findings of fact and state conclusions of law, but it appears that the court did so. Thereafter judgment was entered in favor of the defendant, dismissing the complaint on the merits.
The eighteenth, nineteenth, twentieth, and thirty-first findings were as follows:
“XVIII. That for the purpose of immediate sale the fair and reasonable value of the interest in the aforesaid contract, including all property transferred by Fitzgerald, Foster, and Helmer to the corporation, in exchange for its stock, was not in excess of five hundred thousand ($500,000.00) dollars.
XIX. That the said Fitzgerald, Foster, and Helmer did not believe, at the time they accepted said property and authorized the issuance of stock therefor, that the same was worth the sum of two million dollars for the purpose of such immediate sale under the then existing conditions and circumstances.
XX. That the said Fitzgerald, Foster, and Helmer knew that the value of said property to said corporation under the then existing circumstances and conditions, for the purpose of immediate sale, was not in excess of five hundred thousand (500,000.00) dollars over and above the debts and obligations assumed by the corporation in accepting the transfer thereof.”
The record recites the following: “In addition to the facts as found by the court, the plaintiffs duly requested the court to make the following findings, to wit: [This recital is followed by three proposed findings, designated A, B, and C, the last of which, being the only one necessary to consider, or involved in the proposition now under consideration, reads as follows: ‘That the value of the interest in the contract and property transferred by Fitzgerald, Foster, and Helmer to the corporation in exchange for its stock was not to exceed five hundred thousand dollars ($500,000), and they knew that fact at the time it was so transferred, and they did not then believe the property to be worth two million dollars ($2,000,000)’].”
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Mosley v. Magnolia Petroleum Co.
...substantial evidence, are the basis of a decision by this court. Daniel v. Clark, 39 N.M. 494, 50 P.2d 429. We stated in Dailey v. Foster, 17 N.M. 654, 134 P. 206, 208: “*** It is manifest, therefore, that the court failed to specifically find upon one of the material issues in the case. Ju......
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O'Meara v. Commercial Ins. Co.
...the price it would sell for in the ordinary course of business, free from incumbrance, and not at forced sale.' See also Dailey v. Foster, 1913, 17 N.M. 654, 134 P. 206; A. & A. Tool & Supply Co. v. Comm'r. of Int. Rev., 10th Cir., 1950, 182 F.2d 300; Moran v. Grosse Pt.Tp., 1947, 317 Mich.......
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Ellis v. Citizens' Nat. Bank of Portales
... ... appellant, and that by reason of the record the decision by ... this court is in conflict with the case of Dailey v ... Foster, 17 N.M. 654, 134 P. 206, to the effect that in ... case of special findings silence upon a material point must ... be regarded as a ... ...
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Ellis v. Citizens' Nat. Bank of Portales.
...resolved against appellant, and that by reason of the record the decision by this court is in conflict with the case of Dailey v. Foster, 17 N. M. 654, 134 Pac. 206, to the effect that in case of special findings silence upon a material point must be regarded as a finding against the party ......