Valley View Consol. Gold Mining Co. v. Whitehead

• Decision Date: 06 May 1919
• Docket Number: 8784.
• Citation: 180 P. 737,66 Colo. 237
• Parties: VALLEY VIEW CONSOL. GOLD MINING CO. v. WHITEHEAD.
• Court: Colorado Supreme Court

180 P. 737

66 Colo. 237

VALLEY VIEW CONSOL. GOLD MINING CO. v. WHITEHEAD.

No. 8784.

Supreme Court of Colorado, En Banc.

May 6, 1919

Error to District Court, Pueblo County; J. E. Rizer, Judge.

Suit by W. O. Whitehead, administrator of the estate of Mrs. W. O Whitehead, deceased, against the Valley View Consolidated Gold Mining Company and others. Judgment for plaintiff, and the named defendant brings error. Reversed.

Adams & Gast, M. G. Saunders, and E. F. Chambers all of Pueblo, for plaintiff in error.

Joseph Dye and B. D. V. Reeve, both of Pueblo, and Fred Herrington of Denver, for defendant in error.

TELLER J.

Defendant in error brought suit against the plaintiff in error, and certain of its officers, to secure a transfer to her of 10,000 shares of the capital stock of said company, and the dividends declared on said shares.

The parties will be here designated as they were in the court below.

The complaint alleged that plaintiff gave to one Stewart, the president of said company, two certificates for 10,000 shares each, indorsed in blank by her vendor, in whose name the certificates had been issued, to be transferred on the books of the company and new certificates therefor to be issued to her.

It was alleged, further, that only one of said certificates had been so transferred, that she had demanded the transfer of the other, and that such transfer had not been made. She prayed that the defendants be required to transfer said 10,000 shares, issue her a certificate therefor, and account to her for dividends, etc.

The defendants by answer denied the right of plaintiff to the demanded transfer; denied that said certificate was ever delivered to said company, or its officers, by the plaintiff or any one in her behalf, for transfer to her; and alleged that the said 10,000 shares had been duly transferred, in August, 1907, more than 2 years before the beginning of this action, to divers persons at the request of the person then in possession of the certificate, of which plaintiff at the time had full knowledge, by reason of which facts plaintiff was estopped to demand the relief prayed for. The plaintiff had judgment for a transfer of said shares to her, and for said dividends.

We are now asked to reverse the judgment on the ground: First, that the evidence does not show that the certificate was delivered to the defendant corporation, by the plaintiff, or by any one for her, for the purpose of transfer to her; and, second, that if plaintiff ever had a cause of action, as set out in the complaint, she had lost it by delaying her suit for nearly 3 years after she might have brought it.

From the record it appears that the plaintiff, in October, 1906, bought the shares in question for $175, receiving at the time a certificate therefor, issued to one Towne, and having on the back a power of attorney to transfer said shares.

In the following March, plaintiff delivered to Stewart this certificate, and another for the same number of shares, also purchased from said Towne, but as to the purpose of such delivery the parties to it do not agree. Plaintiff claims that Stewart took the certificate under an agreement with her to have the stock transferred and new certificates for 20,000 shares issued to her. Stewart claims that plaintiff was a party to an agreement under which certain of the stockholders were to divide among themselves stock purchased by any one of them, and that, learning that plaintiff had purchased these shares, he went to her house and demanded the certificates for transfer and delivery according to said agreement, and that they were delivered to him for that purpose. The office of the company was in Pueblo where all the parties resided. The certificates bore on the face thereof the following:

'Transferable only on the books of the company by the holder hereof in person or by attorney, upon surrender of this certificate properly indorsed'

--which was in accordance with the by-laws of the company.

Counsel for defendant in error, in oral argument, conceded that she made Stewart her agent to deliver the certificates to the company for transfer, but insisted that when the certificates had reached the company's office Stewart's further acts, in having them transferred, were the acts of the company. This suggests a misconception of the operation of transferring shares.

The indorsement on the certificate reads as follows:

'Certificate for 10,000 shares of the capital stock issued to M. L. Towne, dated ... For value received, ..... hereby sell, convey and transfer unto ........ shares of the capital stock represented by the within certificate and do hereby irrevocably constitute and appoint ..... to transfer the said stock on the books of the within named company, with full power of substitution in the premises.

'Dated ..., 190.. In the presence of .....

M. L. Towne.'

This indorsement made the certificate transferable by delivery, and the holder of it by purchase was, as against the corporation, the equitable owner of the shares named in it. He could lawfully write in the blank the name of any person as assignee, or as attorney in fact.

The transfer on the books perfects the title, and the...