Watkins v. Record Photographing Abstract Co.

• Decision Date: 08 June 1915
• Citation: 149 P. 478,76 Or. 421
• Parties: WATKINS v. RECORD PHOTOGRAPHING ABSTRACT CO.
• Court: Oregon Supreme Court

149 P. 478

76 Or. 421

WATKINS v. RECORD PHOTOGRAPHING ABSTRACT CO.

Supreme Court of Oregon

June 8, 1915

In Banc.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Action by George Watkins against the Record Photographing Abstract Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover money. The complaint states, in effect that the defendant is a corporation and the plaintiff a duly licensed attorney of Oregon; that during the year 1912, and prior to June 1st thereof, the plaintiff, at the request of the defendant, performed for it professional services of the reasonable value of $100; that in the years 1912 and 1913, at the further request of the defendant, the plaintiff paid out for itsexclusive use and benefit sums of money, giving the respective dates and items thereof, amounting to $646.55 "that defendant received and accepted the same and the benefit arising therefrom, and promised and agreed to pay plaintiff therefor in its capital stock at par when his demands should be presented and audited, and plaintiff agreed to accept the same; that during the month of April, 1913 plaintiff prepared and delivered to defendant an itemized statement of his claims and demands against it substantially as above set forth, * * * and demanded that defendant audit and allow the same and issue plaintiff stock therefor as agreed; that defendant then and there wrongfully refused and neglected to audit or allow plaintiff's claims and demands or to issue or deliver to plaintiff any stock or to do anything at all in the matter in violation of its promises and agreements;" that the defendant wrongfully refuses to carry out such engagement to plaintiff's loss in the sum of $746.55, for which judgment is demanded.

The answer admits each allegation of the complaint in respect to the reasonable value of the services so performed and of the several sums of money so paid, but denies the remaining averments. For a further defense it is alleged, in substance that during the year 1912 the defendant was duly organized by the plaintiff, together with W. J. Rust and Edward A. Harris, who severally subscribed for $1,700 of the stock of the corporation, and each was elected a director and officer thereof; that by resolution of the directors it was determined that the value of any services performed and the equivalent of any money paid by either of them at the request of the defendant should be credited on account of his subscription; that at all times the defendant has been ready and willing to issue to the plaintiff, in satisfaction of his demands, its capital stock in shares of $100 each, the par value thereof, and "now tenders" the same to him in payment of his claim; that the defendant has heretofore been unable to make such tender, because the plaintiff, as an officer of the corporation, refused to surrender to it the books, stock certificates, etc., of which he had the exclusive possession.

The reply denies the allegations of new matter in the answer, except it admits that on April 22, 1912, each person named subscribed for capital stock of the corporation in the sum stated, whereupon directors were elected as follows: Rust for three years; Harris for two; and the plaintiff for one. It alleges that on August 2, 1912, by resolution of the board of directors, the plaintiff's subscription, with his consent, was reduced to ten shares; that the stock book was left in the possession of the plaintiff, who has cared for it without any demand having been made for its delivery; and that since April 22, 1913, he has not been a director of the corporation.

Based on these issues the cause was tried, resulting in a judgment as prayed for in the complaint, and the defendant appeals.

Peck & Peck, of Marshfield, and J. M. Upton, of Roseburg, for appellant. Chas. I. Reigard and Geo. Watkins, both of Marshfield, for respondent.

MOORE C.J.

It is maintained by the appellant that the pleadings disclose a cause of action founded upon an express contract whereby the defendant was to deliver its capital...