Daniel v. Gold Hill Min. Co.
| Citation | 28 Wash. 411,68 P. 884 |
| Parties | DANIEL v. GOLD HILL MIN. CO. et al. |
| Decision Date | 23 April 1902 |
| Court | Washington Supreme Court |
Appeal from superior court, Spokane county; Leander H. Prather Judge.
Action by R. T. Daniel against the Gold Hill Mining Company and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.
Samuel R. Stern, for appellant.
P. F Quinn, for respondents.
The amended complaint in this action, omitting title and jurat is as follows:
'Plaintiff, by this his first amended complaint, alleges:
'(1) That at all the times herein mentioned he was, and still is, a resident of the city of Spokane, Washington, and that the defendant Gold Hill Mining Company was, and still is, a duly incorporated mining company, organized and existing under the laws of the state of Washington, having filed its articles of incorporation in the county auditor's office of Spokane county on October 2, 1895 [and that, among the objects of said corporation was the transaction of a general mining business, such as locating, acquiring, procuring, holding, buying, selling, leasing, and operating mining properties in the province of British Columbial], and that its capital stock was five hundred thousand shares, of the par value of one dollar ($1) each.
'(2) That the defendant John T. Sullivan is the present acting and duly qualified secretary of said mining company, and has charge of the books, papers, stock books, seal, and other property of said mining company, contained in the office of said company, at Spokane, Washington.
'(3) That the other defendants above named, to wit, John T. Sullivan, Michael Doneen, E. J. Dyer, George Comegys, Fred C. Davidson, Edward Welch, and E. J. Doneen, are stockholders and trustees of the said mining company, and are all residents of the city of Spokane.
'(4) [That the said Gold Hill Mining Company has, since its incorporation, acquired certain mining properties in the province of British Columbia, and has prosecuted all its actual business within said province, being a corporation of the state of Washington for convenience only], and because it was organized by residents of the state of Washington, who are its chief stockholders.
'[(5) That in order to prosecute its business within the province of British Columbia, the said mining company was required by the statutes of the said province of British Columbia to, and did in accordance with the provisions of said statutes, maintain an office within the said province, to wit, at Rossland, B. C., and designated an agent, to wit, J. A. McDonald, of Rossland, B. C., all in pursuance of section 140, c. 44, of the Revised Statutes of British Columbia; and a copy of said act is hereto annexed, and made part hereof.]
'[(6) That the only property owned or acquired by the said mining company was known as the 'Gold Hill Mineral Claim,' and situated within a few miles of the said city of Rossland, B. C.]
'[(7) That the defendants above named, other than the Gold Hill Mining Company and John T. Sullivan, were trustees of the said Gold Hill Mining Company, and while acting as such trustees did, as this plaintiff had reason to believe, conspire, for the purpose of defrauding plaintiff and other stockholders of the said Gold Hill Mining Company, to sell said Gold Hill mineral claim at an inadequate price; and, in order to prevent the perpetration of said fraud, this plaintiff brought an action in the supreme court of British Columbia against the Gold Hill Mining Company and all of the above defendants, except the defendant Sullivan, by serving process upon the said McDonald, as agent aforesaid, then empowered to accept service, and also by publication of summons; and that thereafter the defendants in that action appeared by their counsel, Messrs. Bowes & Senkler, and contested the said suit, and the same proceeded to trial upon the personal appearance of said defendants, and by their said attorney], and that on September 18, 1897, this plaintiff procured a judgment against said defendants [declaring the purported conveyance of the said Gold Hill mineral claim to the defendant Edward Doneen to be null and void and in fraud of this plaintiff and other stockholders], and for costs against said defendants, and that thereafter said defendants, by their said attorneys, prosecuted an appeal from said decision, which said appeal, coming on to be heard at Victoria, in the province of British Columbia, was dismissed, and judgment rendered for this plaintiff against said defendants on February 10, 1899, for the sum of $376.29, and of all which said defendants herein had due and personal notice; that upon the said judgment an execution was duly issued to the sheriff of South Kootenay, B. C., and as required by the statutes of British Columbia, and said sheriff thereafter [to the personal knowledge of said defendants] sold all the right, title, and interest of the defendants E. J. Doneen, Michael Doneen, F. C. Davidson, Edward Welch, and E. J. Dyer to their respective shares of the capital stock of the said Gold Hill Mining Company, and amounting in all to the sum of $211,500 shares, as follows:
---------------------------------------------------- Defendant from Certificate No. Whom Seized. No. of Shares. ---------------------------------------------------- 65 E. J. Doneen. 1,000 101 " " 10,000 102 " " 30,000 103 " " 5,000 104 " " 2,500 105 " " 1,500 107 " " 500 109 " " 35,000 112 " " 50,000 115 " " 400 87 Michael Doneen. 50,000 18 F. C. Davidson. 10,000 19 " " 10,000 111 " " 5,000 114 Edward Welch. 100 30 E. J. Dyer. 500 ------- Total, 211,500 ----------------------------------------------------
'That before selling said shares of stock, the said sheriff, as required by the laws of the said province of British Columbia [and in absence of any special provision of the law of the state of Washington respecting the sale of stock under execution, caused notice to be served upon the said Gold Hill Mining Company, hereinbefore referred to, and as provided by the said laws of the said province of British Columbia, which said notice contained all the facts showing the procurement of the said judgment, the issuance of said execution, the interest of each of said defendants, and the number of shares owned by each, and that said shares were to be sold at public auction, as provided by the laws of the province of British Columbia, on April 28, A. D. 1899, at the hour of 11 o'clock in the forenoon, and of the terms and conditions of said sale (and a copy of the published notice of sale is hereto attached, and made a part hereof), and that a copy of said notice was published in the Rossland Miner in the manner and for the times prescribed by the statute of said British Columbia, and that, in addition thereto, such notice was given to said Gold Hill Mining Company as is provided by the statutes of the state of Washington relative to the attachment of stock in such corporation, and by service upon the secretary of said company, and all for the purpose of giving full and ample notice to the said defendants, and to the said mining company and its officers, of the sale of the said respective shares of stock owned by said defendants, and as provided by law].
'(8) That said sale took place at public auction, after due advertisement, as provided by the laws, statutes, and customs of British Columbia, and that the plaintiff, being the highest bidder therefor, at the sum of one hundred and five dollars ($105), lawful money of Canada, did then and there become the purchaser of the said interest of all of said defendants, and of the said shares of stock owned by them, respectively, and that in accordance with the said sale, and purchase by this plaintiff, and under and pursuant to the powers vested in the said sheriff by the execution act, said sheriff did transfer and assign to the plaintiff all the right, title, and interest of the said defendants above named, excepting the said Gold Hill Mining Company and John T. Sullivan, in and to the said 211,500 shares of said stock as aforesaid, and plaintiff then became, and still is, the owner of said shares of stock, and of the interest of the said defendants therein, and entitled to a certificate representing the said 211,500 shares, and to be recognized upon the books of said Gold Hill Mining Company as the owner of the said shares of stock.
'(9) That the said defendants having failed and neglected to pay the balance due upon the said judgment, this plaintiff on January 12, 1899, commenced an action against said defendants in the superior court of Spokane county, which said action was known as No. 13,831 of the filing numbers of causes on file in the clerk's office of Spokane county, and that the said defendants appeared in said action by Jones, Belt & Quinn, their attorneys [but recognizing their liability, and that there was no defense, except partial payment, before a trial of the issues therein had been had said defendants offered to pay, and did pay, the amount due on said judgment, after being credited the sum of one hundred and five dollars ($105) paid by the plaintiff herein upon the sale of his said execution, less the expenses of said sale, amounting to sixty-one dollars and thirty-five cents ($61.35), leaving a credit to be given upon said judgment of forty-three dollars and sixty-five cents ($43.65), as hereinbefore alleged, and that said defendants were fully aware of the fact that said judgment had been obtained in the province of British Columbia, that execution had been issued thereon, that the sale was to be made and was made on the said execution at the time and in the manner hereinbefore alleged, and that said judgment was in all respects regular and legal, and insisted that, as plaintiff had...
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