Rockwell v. Peyran

• Decision Date: 04 April 1933
• Docket Number: 24282.
• Citation: 20 P.2d 841,172 Wash. 434
• Parties: ROCKWELL v. PEYRAN et al.
• Court: Washington Supreme Court

20 P.2d 841

172 Wash. 434

ROCKWELL v. PEYRAN et al.

No. 24282.

Supreme Court of Washington

April 4, 1933

Department 2.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by William H. Rockwell against Guy C. Peyran and others wherein the First Guaranty Company filed a cross-complaint. From judgment dismissing plaintiff's action and granting recovery on cross-action, plaintiff appeals.

Affirmed.

Stuart H. Elliott, of Tacoma, for appellant.

Robert B. Abel, of Tacoma, for respondents.

STEINERT, Justice.

Plaintiff's theory of this case, as disclosed by his complaint, is that on June 27, 1931, he sold and delivered to defendants 186 shares of 'Transamerica' stock, having a market value at that time of $1,627.50, for which payment is now demanded. Defendants' theory of the case, as disclosed by their answer and cross-complaint, is that on the above date the plaintiff exchanged his 'Transamerica' stock for 20 shares of preferred stock of the defendant First Guaranty Company, a corporation, and at the same time borrowed of the company the sum of $525, for which he gave his collateral note payable on demand and secured by a pledge of the preferred stock which plaintiff was to receive in the exchange. Upon the trial, plaintiff consented to a dismissal of the action so far as the individual defendants were concerned, and the cause proceeded against the defendant corporation alone. The court, after hearing the evidence, accepted the theory of defendants, entered its findings, conclusions, and judgment dismissing the complaint awarding the company recovery upon plaintiff's note establishing a lien on the stock pledged and ordering its sale and the application of the proceeds thereof to the judgment. The plaintiff has appealed.

The case is primarily one of fact. The opposing evidence was diametric in its tenor and effect. The only witnesses were the appellant and the defendant Guy C. Peyran, who was the president of the respondent corporation. Both of these witnesses were parties to the transaction and directly interested in the results. The court saw the witnesses and heard and weighed their testimony. The evidence does not clearly preponderate against the findings of the court, but as it seems to us, its weight is the other way. Under the rule established in this state, the findings may not, under such circumstances, be disturbed on appeal. Peterson v. Ogle, 110 Wash. 610, 188 P. 768; Yarnall v. Knickerbocker Co., 120 Wash. 205, 206 P. 936; O'Reilly v. Miller, 148 Wash. 277, 268 P. 869; Herz v. Ransom, 168 Wash. 512, 12 P.2d 750.

Appellant, in his assignments of error, raises several questions of law. These we will notice briefly. Appellant first contends that the court erred in permitting respondent to read into the record the wording contained on the stub of a receipt book, purporting to show that the transaction was an exchange as contended by respondent. He contends that this was error because no preliminary notice to produce the original receipt had been served upon the appellant or his attorney. Mr. Peyran testified that he had given the receipt to appellant, and that it contained the same wording as that appearing on the stub. Although no formal notice to produce the receipt had been given, that became immaterial, because it appeared at the time that appellant could not have produced the receipt in any event. The demand, therefore, would have been an idle formality. There was sufficient basis for the secondary evidence.

Appellant also complains because respondent was allowed to read into the record certain minutes of the corporation showing that at a meeting of the trustees the exchange of stock and the pledge securing the collateral note of the plaintiff had been approved. Mr. Peyran had already testified to the same matter. The evidence afforded by the minite book was therefore merely cumulative. But, aside from this, we think that the evidence was admissible. This being an action between a stockholder and the corporation, the minutes were...