West v. Tintic Standard Mining Co.

• Citation: 71 Utah 158,263 P. 490
• Decision Date: 14 January 1928
• Docket Number: 4621
• Court: Utah Supreme Court
• Parties: WEST v. TINTIC STANDARD MINING CO

263 P. 490

71 Utah 158

WEST v. TINTIC STANDARD MINING CO

No. 4621

Supreme Court of Utah

January 14, 1928

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Action by Evelyn E. West against the Tintic Standard Mining Company. From a judgment for plaintiff, defendant appeals, and plaintiff files a cross-appeal. Cause remanded to district court, with directions to modify judgment and enter judgment for plaintiff accordingly.

Cause remanded, with directions to modify the judgment.

W. I Snyder, Vernon Snyder and H. Van Dam, Jr., all of Salt Lake City, for appellant.

Joseph E. Evans, of Ogden, for respondent and cross-appellant.

STRAUP J. THURMAN, C. J., and CHERRY, HANSEN, and GIDEON, JJ concur.

OPINION

STRAUP, J.

The plaintiff, West, by her complaint, alleged that she, on January, 1925, and for many years prior thereto, was the owner of a certificate, No. 370, for 500 shares of the capital stock of the defendant, Tintic Standard Mining Company, a corporation; that an attorney at law, David Jenson, at Ogden, Utah, by some means unknown to her, on January 17, 1925, wrongfully obtained possession of the certificate, and on the back thereof filled out a printed blank indorsement by writing therein the name of "David Jenson, trustee," as the assignee and transferee, and forged the plaintiff's name thereto as the assignor; that with such indorsement the attorney presented the certificate to the defendant, who, at his request, negligently, wrongfully, and without authority, canceled the certificate, and in lieu thereof issued and delivered to him three certificates, one for 100 shares and two for 200 shares each, in the name of "David Jenson, trustee," and that thereafter the defendant, on or about January, 1925, wrongfully, negligently, and without authority, transferred on its books such certificates to divers persons unknown to the plaintiff; that the stock was of the value of $ 15 a share, and paid dividends of $ 1.70 a share in 1925, and about $ 1.50 a share in 1926, which dividends, as well as the certificate, were lost to the plaintiff. She prayed that the defendant be required to issue to her a new certificate for 500 shares in lieu of certificate No. 370, and to account to her for the unpaid dividends, or that she have judgment against the defendant for $ 7,500, the value of the stock, and for the unpaid dividends.

The defendant, by its answer, admitted that the plaintiff, in January, 1925, and prior thereto, was the owner of the certificate No. 370 for 500 shares; that the company paid dividends on its stock as in the complaint alleged; denied the alleged forgery and wrongful transfer; averred that the plaintiff, for March, June, and September, 1925, received dividends on her stock "in some other form than as issued by the defendant, and that she was thereby put on notice that somebody else was receiving dividends upon said stock, and that she was negligent in not informing the defendant of any claim she might have to said stock," and that she was "estopped by her conduct in receiving said dividends in that manner, and not claiming that there was any wrongful transfer of said stock."

The case was tried to the court. The court found all of the issues in favor of the plaintiff, except that her signature to the indorsement was not forged, but was genuine. In such respect the court found that some time in 1921 the plaintiff intrusted the certificate No. 370, with other papers, to the attorney for safekeeping; that she then signed the certificate in blank, but that he without right or authority, filled out the blank indorsement in his own name as "David Jenson, trustee," as the assignee and transferee, and thereafter, without the knowledge or consent of the plaintiff, and without authority, presented the certificate so indorsed and filled out to the defendant, who wrongfully and carelessly, and without authority, canceled it, and issued to the attorney in his name, "David Jenson, trustee," three other certificates in lieu thereof, and as in the complaint alleged; that the stock in January, 1921, was of the value of $ 9.30 a share; that the attorney, by cashier's checks purchased by him from a bank, paid to the plaintiff the equivalent of the dividends declared and paid by the defendant on 500 shares of stock, from 1925 to and including June, 1926; that Jenson caused to be written on such cashier's checks the word "dividend," and mailed the first two to the plaintiff in the defendant's envelopes, and the remaining checks in envelopes of the bank, approximately at the time the regular dividends of the defendant were paid; that she was not thereby put on notice that somebody else was receiving dividends on the stock, nor was she negligent in not informing the defendant of her claim with respect thereto, and that there was not anything in her conduct in receiving the checks to estop her from claiming that the transfer of her stock was wrongful and without authority. The court rendered judgment against the defendant in the sum of $ 4,650, being the value of 500 shares at $ 9.30 a share, together with interest, $ 868, or a total judgment of $ 5,518. The defendant appeals. The plaintiff has filed a cross-appeal.

We shall first consider the questions presented by the defendant's appeal. A point is made by the defendant that, inasmuch as the court found that the signature of the plaintiff to the indorsement on her certificate No. 370 for 500 shares was genuine, and not a forgery, the complaint failed to state a cause of action. The point is not well taken. The sufficiency of a pleading is dependent upon allegata and not probata.

The further points raised by defendant go to the findings and to the law applicable thereto. The material facts of the case are that the plaintiff resided in Ogden. She had heard of, and knew, the attorney. He, prior to the transactions herein referred to, had done some notarial work for her. In June, 1921, she was about to go to California on a visit. She took the certificate for 500 shares of the Tintic Standard Mining Company, together with certificates of other companies and other papers, all in a shoe box, to the attorney, and asked him to keep them for her. The attorney prepared a separate written assignment of all of the shares of stock, a number of them in about six different companies, including the certificate No. 370 of the Tintic Standard Mining Company, by the terms of which she assigned all of such shares of stock to her four children. The shares are all specifically described in such assignment. The assignment was signed by the plaintiff and acknowledged in the presence of the attorney as a notary, and was placed in the box with the certificates. There is a conflict in the evidence as to whether the certificate No. 370 of the Tintic Standard stock was indorsed by the plaintiff. The trial court found that it was indorsed by her, and that the signature thereto was genuine. There is ample evidence to support such finding. We approve it.

On the back of the certificate is a printed form of assignment as follows:

"For value received, hereby sell, assign, 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 corporation, with full power of substitution in the premises.

"Dated, , 19 .

"

"In presence of ."

That as found by the court, was signed in blank by the plaintiff. She was gone to California about four weeks. She did not call for her papers on her return. They remained with the attorney until August 30, 1924, when she had other business with the attorney, and then called for the box containing the papers. The box was then delivered to her by the attorney. She, believing that it contained all of the certificates and papers that were in the box when delivered to the attorney, took the box home, and put it away without examining the contents of the box as to each certificate or paper. From the time she delivered the box to the attorney until January 2, 1925, she received the dividends paid by the defendant, about three in number each year, and which were paid direct by the company's check drawn on Walker Bros.' bank at Salt Lake City, and mailed to her at Ogden. In March, July, and October, 1925, and in April and July, 1926, she received by mail cashier's checks of Walker Bros.' bank, on which checks was noted in typewriting the number of the "dividend" paid by "Tintic Standard Mining Company," and whether regular or extra, and the amount thereof per share. Two or three of these checks were inclosed in envelopes bearing the name of the Tintic Standard Mining Company. The other cashier's checks were inclosed in envelopes of Walker Bros., bankers. About the last of September, 1926, she, not having received her dividend for that month, phoned to another stockholder at Ogden, and inquired of him whether he had received his September dividend. He informed her that he had received it "several days ago." Then for the first time did she examine the contents of her box, and found her certificate of Tintic Standard stock missing. All of the other papers were in the box as delivered by her to the attorney, and several other papers not belonging in the box. She immediately went to the office of the defendant at Salt Lake City, and learned for the first time what disposition had been made of her certificate of stock. She then learned that the attorney had wrongfully and without authority taken the certificate out of the box some time before the attorney had delivered the box back to her in August, 1924; that he had wrongfully and without authority filled in the blank indorsement with a typewriter by...