Wheaton v. Rampacker

• Decision Date: 27 April 1891
• Citation: 3 Wyo. 441,26 P. 912
• Parties: WHEATON et al. v. RAMPACKER
• Court: Wyoming Supreme Court

26 P. 912

3 Wyo. 441

WHEATON et al. v. RAMPACKER

Supreme Court of Wyoming

April 27, 1891

Error from district court, Albany county.

Action by one Rampacker against George D. Wheaton and others. Plaintiff had judgment, and defendants bring error. Affirmed.

Judgment affirmed.

Brown &amp Arnold, for plaintiffs in error.

I. P Caldwell and Lacey & Van Devanter, for defendant in error.

GROESBECK C. J. CONAWAY and MERRELL, JJ., concur.

OPINION

GROESBECK, C. J.

Rampacker, the defendant in error, brought suit in the district court of Albany county against Wheaton and Trabing, the plaintiffs in error, on a certain indorsement upon a certificate for five shares of the capital stock of the Big Laramie Land, Cattle & Improvement Company, of the par value of $ 500, which he (Rampacker) owned on the 22d day of May, 1884. This indorsement on the certificate is as follows: "Chicago, May 22, '84. We agree to pay A. Rampacker the par value of this stock, with interest at 10 per cent. per annum from date, after three years, upon the surrender of this certificate. [Signed] GEO. D. WHEATON. TRABING BROS." The firm or copartnership of Trabing Bros. was, at said date, composed of Augustus Trabing, one of the plaintiffs in error, and Charles Trabing, who has since died. The petition alleged these facts, and that on the 16th day of May, 1888, and at divers other times prior to that date, and after the expiration of said three years, Rampacker offered to surrender the said certificate of stock to said Wheaton and Trabing, and demanded payment therefor, which was refused. Augustus Trabing, who appears to be the only defendant served and appearing in the court below, demurred to the petition on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled, an exception was taken, and Trabing answered, admitting that Rampacker was the owner of the said certificate on May 22, 1884, admitting the execution of the said indorsement thereon by him for Trabing Bros., but denying that there was ever any consideration to support the agreement indorsed upon said certificate, although this was not alleged in the petition, denying that Rampacker ever promised to return said stock or to surrender the same to said Wheaton and Trabing, although this was not alleged in the petition; and denying, further, the offer to surrender said stock by Rampacker, and denying that he demanded payment therefor from any defendant in the case, in accordance with the conditions written upon the back of said certificate. A trial was had, and the court found for Rampacker, the plaintiff therein, and rendered judgment in his favor against Augustus Trabing for the sum of $ 746.65 and costs. A motion for a new trial was made and overruled, and proceedings in error were brought to this court.

1. We cannot review the evidence in the record, presented, as it is claimed, before the trial court, as it has become the settled rule of this court, to which we must adhere, that the bill of exceptions must contain all the evidence admitted in the trial court, where the same is sought to be reviewed here. The statement in the bill of exceptions before us is that "the said testimony was all the testimony offered by either party on the trial of this cause." It was held in the case of Trust Co. v. Holliday, (Wyo.) 3 Wyo. 386, 24 P. 193, ^[1] that the word "testimony" is not synonymous with the word "evidence," and that such a bill of exceptions as the one before us, containing a like recital, would not be considered by the court. The learned counsel for the plaintiffs in error, recognizing the force of this rule, contented himself with urging two objections to the judgment of the district court: (1) The court erred in overruling the demurrer to the petition; and (2) the petition does not state facts sufficient to support the judgment.

2. These objections rest upon the single proposition, which was argued at length, that the petition does not allege any consideration for the offer to purchase or take the stock in question. This is true. The agreement was strictly unilateral, as it was not signed by Rampacker and there is nothing to...