Starkweather v. Conner

• Decision Date: 27 November 1934
• Docket Number: Civil 3429
• Citation: 44 Ariz. 369,38 P.2d 311
• Parties: M. H. STARKWEATHER and RINCON RANCH COMPANY, a Corporation, Appellants, v. ARCHIE R. CONNER, as Executor of the Last Will and Testament of WALTER S. GURNEE, Deceased, Appellee
• Court: Arizona Supreme Court

38 P.2d 311

44 Ariz. 369

M. H. STARKWEATHER and RINCON RANCH COMPANY, a Corporation, Appellants, v. ARCHIE R. CONNER, as Executor of the Last Will and Testament of WALTER S. GURNEE, Deceased, Appellee

Civil No. 3429

Supreme Court of Arizona

November 27, 1934

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.

Messrs Knapp, Boyle & Thompson, for Appellants.

Messrs Mathews & Bilby and Mr. T. K. Shoenhair, for Appellee.

OPINION

LOCKWOOD, J.

This is an action brought by Archie R. Conner, as executor of the last will and testament of Walter S. Gurnee, deceased, to quiet title to 55 shares of capital stock of Rincon Ranch Company, an Arizona corporation, against said corporation and M. H. Starkweather, the latter hereinafter called defendant. Judgment was rendered in favor of plaintiff, and this appeal was taken.

There are three assignments of error, the first that the court erred in rejecting certain evidence offered by defendant, and the other two going to the sufficiency of the evidence to sustain the judgment. In order that we may pass properly on these, it will be necessary to state briefly the undisputed facts:

Rincon Ranch Company was incorporated with an authorized capital stock of $50,000 common and $50,000 preferred stock. At a meeting of the board of directors held October 8, 1928 Walter S. Gurnee, who was then president, proposed to purchase from the corporation at par for cash 30 shares of the preferred capital stock, and M. H. Starkweather, who was then secretary, offered to purchase the same amount. The offer was accepted by the board, and of February 9, 1929, certificates of stock were issued to Gurnee and Starkweather forthe stock so purchased. Thereafter and on January 30, 1931, Gurnee surrendered his certificate for the 30 shares of stock issued to him, and another certificate to replace such certificate was issued to him on that date. There were also issued on the same date certificates numbered 4 and 5 in the amount of 25 shares each to Gurnee and Starkweather, respectively; there being thereafter and on that date, as shown by the books of the company, 55 shares of capital stock represented by certificates numbered 3 and 4 outstanding in the name of Walter S. Gurnee and 55 shares represented by certificates 2 and 5 outstanding in the name of M. H. Starkweather. The stubs of the stock register for certificates 1, 2, 4 and 5 bore canceled United States revenue stamps in the proper amount for original issues of stock, but the stub for certificate 3 bore no stamps. Certificates numbered 3 and 4, above referred to, as issued to Walter S. Gurness, are those which are in controversy in the present action.

The case came on for trial before a jury, and plaintiff offered in evidence the records of the company showing the foregoing facts and thereupon rested. Thereafter defendant Starkweather took the stand and testified, in substance, that certificates 3 and 4 issued in the name of Walter s. Gurnee were in his possession and had been since the day after they were issued. The certificates themselves were then introduced in evidence, and it appeared that upon their back they bore the following typewritten indorsement:

"For value received, I hereby sell, assign and transfer to -- thirty shares of the Capital Stock represented by the within certificate and do hereby irrevocably constitute and appoint M. H. Starkweather to transfer the said stock on the books of the within named corporation with full power of substitution in the premises.

Dated --.

"In Presence of --.

"(Signed) W. S. GURNEE"

it being testified by Starkweather that the signature "W. S. Gurnee" affixed thereto was written by Gurnee at the time the certificate was issued. He was then asked as to what was done to the certificates by Gurnee, and objection was immediately made by Plaintiff as to any testimony concerning any transaction with the latter; this objection being based upon the provisions of section 4414, Revised Code of 1928, which reads as follows:

"§ 4414. Limitations to testimony in actions by or against personal representatives. In an action by or against executors, administrators or guardians, in which judgment may be rendered, for or against them as such, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward unless called to testify thereto by the opposite party or required to testify thereto by the court, and the provisions of this section shall extend to and include all actions by or against the heirs, devisees and legatees or legal representatives of a decedent arising out of any transaction with such decedent."

There was an extended argument over the admissibility of the testimony, defendant urging that Starkweather's deposition had been taken by plaintiff as an opposite party, going very fully into the transaction between himself and Gurnee regarding the stock in question, and therefore, even though such deposition was never offered in evidence by plaintiff, he had waived his right to take advantage of the provisions of section 4414, supra, and plaintiff claiming that, since he had not offered the deposition at the trial, he was not precluded from making the objection. The court finally ruled that the objection had not been waived by the taking of the deposition. Starkweather then testified that the certificates had been in his possession in his personal lock box since the day after the date of their issuance, and that he did not hold them in his possession as an officer of the company. Thereafter defendants rested.

Plaintiff then called Gerald Jones, who had for some time acted for Gurnee as his attorney, as a witness, and he testified that Starkweather had told him that he was agent for Gurnee and acting practically as his secretary for a year a half or two years prior to Gurnee's death, and that he on a number of occasions had consulted Jones in regard to Gurnee's business. Starkweather was then recalled by defendants and was asked as to how he held the certificate in question. To this objection was made on the ground that, if it referred to any transaction with Gurnee, it was barred by the statute, and the court ruled that the witness might not testify as to any transactions with Gurnee, but that, if he held them through anyone except Gurnee, he might testify, and after this ruling no testimony was offered by Starkweather as to his holding them through anyone else. This is substantially all the testimony which appears in the record. By consent of both parties the court discharged the jury, and, after considering the matter, rendered judgment in favor of plaintiff.

We consider first the assignment in regard to the rejection of the testimony of Starkweather. We are of the opinion that under the peculiar provisions of our statute the court correctly ruled that the taking of the deposition of the opposite party by plaintiff when it was not offered in evidence by him did not waive his right to take advantage of the statute. Kentucky Utilities Co. v. McCarty's Admr., 169 Ky. 38, 183 S.W. 237; Bambauer v. Schleider et al., 176 A.D. 562, 163 N.Y.S. 186; Farmers' Loan & Trust Co. v. Wagstaff et al., 194 A.D. 757, 185 N.Y.S. 812.

Counsel for plaintiff has cited to us on this point the case of McClenahan v. Keyes, 188 Cal. 574, 206 P. 454, but we think it is not in point, for the reason that the California statute in regard to depositions differs widely from ours.

We come then to the question as to whether the testimony above set forth is sufficient to sustain...