Mack v. Pardee, (No. 18928.)

• Decision Date: 21 February 1929
• Docket Number: (No. 18928.)
• Parties: MACK v. PARDEE.
• Court: Georgia Court of Appeals

39 Ga.App. 310

147 S.E. 147

MACK

v.PARDEE.

(No. 18928.)

Court of Appeals of Georgia,

Division No. 2.

Feb. 21, 1929.

(Syllabus by the Court.)

Error from City Court of Thomasville; H. J. MacIntyre, Judge.

Suit by R. S. Pardee against E. E. Mack. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error. Affirme'd.

Branch, Snow & Alexander, of Thomasville, for plaintiff in error.

E. K. Wilcox, of Valdosta, and H. H. Merry, of Thomasville, for defendant in error.

BELL, J. R. S. Pardee brought suit against E. E. Mack for $13,045, alleging: On July 1, 1026, the plaintiff sold and delivered to the "defendant——shares of the capital stock of Southern Saw Mill Company, a corporation, " the consideration of which was an amount due upon a note held by Mack against Pardee, and cash in the sum sued for, to be paid by Mack "at once." The defendant has failed and refused to pay the same, though requested to do so.

The defendant in his answer made a general denial of the plaintiff's allegations, and filed no other plea.

The jury returned a verdict in favor of the plaintiff; whereupon the defendant moved for a new trial on the general grounds, and on two special grounds complaining of errors in the charge of the court.

1. Counsel for the plaintiff in error insist in their brief that the evidence shows that the alleged contract was unenforceable under the statute of frauds, and thus that a new trial should have been granted upon the ground that the verdict was contrary to the evidence and to law. But, in view of the record as made, no question as to the applicability of the statute can be considered under the general grounds of the motion for a new trial in this case. In Bridges v. Williams, 148 Ga. 276 (1), 96 S. E. 499, the Supreme Court held: "Where the statute of frauds was not pleaded, and there was no demurrer, motion for nonsuit, or objection to testimony, so as to invoke a ruling in the court below on that subject, this court will not grant a new trial on the ground that the verdict is contrary to law because it appears that the contract sought to be enforced should have been in writing." See, also, Tift v. Wight & Weslosky Co., 113 Ga. 681 (2), 39 S. E. 503; Brannen v. MeElveen, 19 Ga. App. 518 (1), 91 S. E. 913. Other cases to the same effect might be cited.

An important question is presented, however, as to whether there was such a completed sale as would authorize the form of action which the plaintiff adopted. The petition is framed upon the theory of an executed transaction (that is, one in which the stock was sold and delivered), leaving nothing else to be done except for the defendant to pay the price agreed on. It appeared from the plaintiff's testimony that the stock at the time of the sale was already in the possession of the defendant, having been pledged to him by the plaintiff as security for a note made by the plaintiff to the defendant upon which there remained due a balance of $79,775.

The number of shares was 650, represented by four certificates, as follows: Two to the plaintiff's wife one for 40 shares issued in 1918, and the other for 360 shares issued in 1922; two certificates to the plaintiff, one for 25 shares issued in 1920, and one for 225 shares issued in 1922. After first being transferred in writing by the apparent owner, each of the four certificates was pledged, as above stated, on or soon after the date of issue; the transfer by Mrs. Pardee having been made in blank, and the transfers by the plaintiff having been made specifically to Mack, the pledgee. The plaintiff claimed upon the trial to have owned all stock at the times when he pledged the certificates respectively to the defendant, and also at the time of the alleged sale.

The plaintiff testified: "I sold my stock to Mr. Mack in the early part of June, 1926, and had a definite understanding as to the purchase and sale. Mr. Mack had the stock certificate the last time I saw it; it was delivered to him and accepted by him and he was to pay for it $13,045. That was not the total price for the 650 shares; it was the balance due after surrendering my note. I owed Mr. Mack some money at that time. It was represented by a note. I sold my stock to Mr. Mack and it was accepted by him. I did not pay him the money I owed him at that time. I surrendered the stock certificate to him. I paid him by selling him the stock and he accepted it in payment of all that I owed him and there was. a balance coming to me of $13,045. He has never paid it, but he promised to pay it. It was a cash transaction; he was to pay me at that time or within a very few days. I insisted on his paying, but he has never done so. * * * I sold him my stock and we agreed on the book value. The book value we agreed on was $142.- 50 per share and that is what he agreed to pay me. Mr. Mack owes me the amount for which I am suing, and it is just, true, due, and unpaid. * * * We figured the thing down, Mr. Mack figured by the interest he gave me according to the payments, figured up $27,275 interest on the note, which left a balance due me on the book value at that time of $13,045. That was in June of last year. Mr. Mack told me he did not have the money to pay me right then, but would get it as quick as he could. Nothing additional was done about my note or about the transfer of the stock. The stock was already in his possession. It had been transferred to him as collateral security. No change was made; no stock was issued. It was already transferred to him. Nothing was done with reference to delivering up the note which Mr. Mack still has. * * * We did not have an agreement in June that at some time he would buy the stock back, but that at some future date he would pay me for it. He told me he had agreed to the price and he would take it. He told me the first of July when I left that he had had a long distance conversation with Mr. Justice and was going east to see Mr. Justice, who was going to put up more money into the business, and that he would pay me next week. I had not at that time demanded the note. I did not care anything about the note; I considered it paid; all I wanted was to get the balance due. I considered it paid by our agreement. * * * When we actually closed the transaction we had a definite agreement as to the amount that was to be paid. It was the understanding that he was to pay me then. He did not pay me then. He said he didn't have it right then. He promised me he would get it during the month of June. * * * At the time Mr. Mack and I were negotiating on the final price of the stock we made up the figures on which we based the price jointly. We were in the office of the Southern Saw Mill Company. * * * Mr. Mack and I made up a complete statement which reflected what both agreed upon was the proper book value of my stock on that date, and I agreed to sell and he agreed to buy. I sold on that basis and he bought on that basis. I do not owe that note for $91,000. I paid it by selling Mr. Mack the stock. * * * I have never made any demand on Mr. Mack in person or in writing for my note which he holds. At the time the transfer was made on those stock certificates it was made for the purpose of security and not to transfer title. I do not claim that I sold the stock to Mr. Mack at the time those transfers were signed. * * * The stock still showed on the books in my name, but showed on the stock certificates that he could transfer it when it became necessary to hold his title. New stock certificates were not issued to him. In June, 1026, when I claim that I sold him the stock, it was exactly that way as he held it in June, 1918. I never knew what was done with them. So far as I know, nothing was done in June to alter the status of the record at all. I supposed he had transferred it; nothing was said about that. He understood he had bought the stock. I did not make a formal demand on him to transfer. I presumed that he would, because he promised to pay me it the following week and he had the certificates authorizing him to transfer it. He had it in his power to transfer that stock on the books of the company. It was Mr. Mack's business to have the stock re-issued."

While the plaintiff's testimony indicates an impression on his part that all the stock was pledged in 1918, which could not have been true in view of the dates of the several certificates and of the transfers appearing thereon, this discrepancy between the testimony and the documentary evidence did not as a matter of law destroy the probative value of the testimony, and it is undisputed that all the stock was in the hands of the defendant as security for the indebtedness, at the time of the alleged sale.

As to the certificates issued to Mrs. Pardee, the plaintiff testified: "When the stock was issued to her she transferred it in blank, gave it back to me on the same day, to be my stock, and I took it and gave it to Mr. Mack; he accepted it as my stock. I don't remember what I said at the time I delivered it to him. He took it and put it with the other certificates in his private drawer."

As will be seen from the above statement, the plaintiff's case rested entirely upon oral testimony, unaccompanied by proof of any physical change in the status of the property, or of any act by the vendee asserting dominion over it. The certificates had been delivered previously in...