Little v. Brown

• Decision Date: 20 January 1930
• Docket Number: Civil 2840
• Citation: 283 P. 924,36 Ariz. 194
• Parties: O. W. LITTLE, Appellant, v. EUGENE J. BROWN, Appellee
• Court: Arizona Supreme Court

283 P. 924

36 Ariz. 194

O. W. LITTLE, Appellant, v. EUGENE J. BROWN, Appellee

Civil No. 2840

Supreme Court of Arizona

January 20, 1930

APPEAL from a judgment of the Superior Court of the County of Mohave. Ross H. Blakely, Judge. Reversed and cause remanded with directions.

Mr Louis L. Wallace and Mr. David P. Hatch, for Appellant.

Mr Carl G. Krook and Mr. John L. Schaefer, for Appellee.

OPINION

ROSS, J.

This is an action brought by O. W. Little against Eugene J. Brown to recover the reasonable value of 20,000 shares of the capital stock of the Kaaba Mining & Milling Corporation alleged to have been sold and delivered to Brown at his request by plaintiff's assignor, W. E. Little; said reasonable value being alleged to be $20,000. The defendant's answer denied that plaintiff's assignor "sold and delivered to the defendant twenty thousand (20,000) shares or any shares of capital stock, . . . " denied that "said alleged twenty thousand (20,000) shares . . . was reasonably worth the sum of twenty thousand ($20,000) dollars," denied "that there is now due and payable for said alleged twenty thousand (20,000) shares of said stock the said sum of twenty thousand ($20,000) dollars or any sum or at all," and denied that W. E. Little, seller, had assigned and transferred the demand to plaintiff or that plaintiff was the owner thereof; pleaded as a separate answer that defendant had bought the said stock from plaintiff's assignor and paid for it in brokerage services rendered the said assignor. Upon the issues thus formed the trial was had before the court without a jury.

In the situation of the pleadings it was incumbent upon the plaintiff to show by competent evidence (1) that his assignor sold and (2) delivered to defendant 20,000 shares of the capital stock of the Kaaba Mining & Milling Corporation, (3) the reasonable value thereof, and (4) the assignment as alleged. The plaintiff's assignor testified, in substance, that he was president of the Kaaba Mining & Milling Corporation; that he caused to be issued 20,000 shares of such corporation's capital stock in the name of Eugene J. Brown & Company; that it was issued in such name under the direction of defendant; that it was assignor's personal stock; that he delivered the same to defendant; that the agreement was that defendant would pay him $10,000 upon delivery, but that when he was about to deliver the stock to defendant the latter represented that he would have to take the stock to his bank and deposit it as security, when he would return to assignor's office with the $10,000; that defendant did not return and did not pay him the $10,000, or any sum whatever. The defendant, called as a witness on behalf of plaintiff, admitted receiving the stock. The assignment was properly proved. The plaintiff then rested, whereupon defendant moved for judgment of dismissal upon the ground that plaintiff had failed to prove a cause of action against defendant. Against the earnest protest and resistance of the plaintiff, the court entered judgment dismissing the case without prejudice. Plaintiff has appealed and assigns, among other errors, the order and judgment of involuntary nonsuit.

It is clear to our minds that the court erred in granting the motion. The plaintiff when he rested had made out a prima facie case and, in the absence of any evidence to the contrary, was entitled to judgment. He had established by competent evidence the four essentials above enumerated to make out a cause of action. There was no evidence of the reasonable value of the stock. There was evidence showing, or tending to show, that the agreed value was $10,000. The court should have overruled the motion to dismiss because (1) he had no right to enter a judgment of involuntary nonsuit, and (2) under the evidence the plaintiff had made out a prima facie case.

It is contended that plaintiff's evidence showed, if anything, a sale of stock to Eugene J. Brown & Company, a partnership, of which Brown was a member, and not to Eugene J. Brown. This contention is based upon the fact that the certificate was made out in the name of the former. While this might be a circumstance tending to show the sale was to the partnership, it would not be sufficient to overcome the positive evidence that it was made to Brown himself. While the partnership might under some circumstances also be liable to the seller for the agreed value of the stock, if it received the fruits thereof, it would not relieve defendant from paying therefor if he agreed to do so.

We have said above...