Salt River Canal Co. v. Hickey

HAWKINS, J. Judgment was rendered in the court below on June 26, 1893. On June 27th appellant moved for a new trial. On July 5, 1893, this motion was.overruled. The bill of exceptions was filed as settled on July 17, 1893. Appellee objected at that time to the proposed bill of exceptions, because not presented during the term (act 9, 1893), and for the [242] reason “said cause had been tried more than ten days before the end of the term.” The transcript should show that the bill of exceptions was presented within the statutory time. These provisions of the statute’ regarding bills of exceptions are mandatory. Putnam v. Putnam, 3 Ariz. 182, 24 Pac. 320. The fact of the judge settling same after the time, and not following the statute, does not make the same a bill of exceptions. The judge must follow the statute. McGuire v. Newbill, 58 Tex. 314. The certificate of the judge in the court below to the bill of exceptions; is as follows: “And I, A. C. Baker, Judge, ... do hereby certify that the above and foregoing bill of exceptions contains all the evidence taken upon the trial in said action, and because none of said testimony, rulings, motions, objections, and the execeptions thereto, appear upon the record and proceedings of said court, and the defendant having caused the above and foregoing bill of exceptions to be prepared and filed, and asking that the same may be signed so that it may become a part of the record, I have therefore settled, allowed, and signed the same, as the bill of exceptions in this cause, this 17th day of July, A. D. 1893.” This action of the julge in allowing said bill was objected to by appellee “because not presented during the term, under act 9, 1893, said cause having been tried more than ten days before the end of the term. ” This objection was well taken, and we cannot consider the bill of exceptions in this appeal. McGuire v. Newbill, supra. We cannot sustain the motion to dismiss the appeal, for the reason that a proper notice of appeal and bond have been given, and the only error we can consider is such as may go to the foundation of the action. Rankert v. Clow, 16 Tex. 13, 67 Am. Dec. 607; Hollingsworth v. Holshausen, 17 .Tex. 47. The only one assigned is the overruling of the demurrer to the complaint. The allegations of the complaint, stripped of the evidential facts, are that on a certain day defendant (appellant) sold to plaintiff (appellee) for a valuable consideration one fourth interest in share No. 6 of the capital stock of defendant, and received payment therefor; that plaintiff thereby became the owner of smli one fourth of share No. 6, and was entitled to a certificate of such ownership from defendant, and to the enjoyment of all the rights and privileges of such ownership; that he demanded of defendant his stock, [243] but defendant refused and neglected to issue to plaintiff a certificate of his ownership of said interest in share No. 6, or to transfer said interest to plaintiff’s name on the books of defendant, or to permit the plaintiff to in any manner avail himself of his rights and privileges as owners thereof, whereby said interest in share No. 6 of the capital stock of defendant corporation became and was wholly lost to the plaintiff, to his damage in the sum of fifteen hundred dollars. To this complaint are a general demurrer and a general denial. The record does not show any action of the court below on the demurrer, but the judgment shows the cause was tried by the court on the issues framed, and the presumption would follow that defendant had waived his demurrer. But defendant having assigned the overruling of the demurrer as error, we will consider same. The complaint on its face, we think, is good. Plaintiff, having bought and paid for the stock, was certainly entitled to it or its value; that is to say, the buyer having paid the contract price for the stock in an action for damages, he is entitled to recover the value of the stock at the time of the refusal of defendant to deliver same to plaintiff, or its value at the time of its conversion by the seller. Field on Damages, par. 795. Mr. Justice Morton, in Pierce v. Benjamin, 14 Pick. 356, 25 Am. Dec. 396, remarks: “The general rule of damages, in actions of trover, is unquestionably the value of the property taken at the time of the conversion.” This is the rule in most of the states, and where there is no claim for special damages. Mr. Justice Story thus announces: “I am of opinion that the rule is the value of the property at the market price at the time of the conversion.” Watt v. Potter, 2 Mason, 77, Fed. Cas. No. 17,291. Mr. Chief Justice Terry, in Douglass v. Kraft, 9 Gal. 563, says: “The rule is, when the property converted has a fixed value, the measure of damages is that value, with legal interest from the time of the conversion; when the value is fluctuating, the plaintiff may recover the highest value at the time of the conversion or at any time afterwards.” The rule seems to vary in different states, but we think the weight of authority is in favor of the fixed rule,—i. e. the value of the property at the time of the conversion, with legal interest from that time; and under our system of pleading the complaint herein fully sets out a cause of action. [244] The allegation of the-conversion or failure to deliver after consideration paid, on demand, and averring general damages, is sufficient. In actions sounding wholly in damages, where there is but a single cause of action, it is unnecessary to state in the complaint specifically the different elements which go to make up the sum total of the damages. It is enough to claim so much gross as damages. Shepard v. Pratt, 16 Kan. 209. Under the general allegation, the plaintiff may prove and recover those damages which necessarily result from the act complained of. Burrell v. Salt Co., 14 Mich. 35. In Roberts v. Graham, 6 Wall. 578, Mr. Justice Swayne says: “Special, as contradistinguished from general, damages is that which is the natural, but not the necessary consequence of the act complained of.” And practically the same rule applies if we consider the complaint as simply an action for damages for failure to deliver the stock after purchase. Benjamin on Sales, 2d Am. ed., par. 870. Nor do we think because the plaintiff set up the facts in his complaint, showing that the stock was sold by appellant for an assessment, made the same bad on demurrer. We cannot presume that defendant’s capital stock was all paid up, or that it was not authorized to sell the stock; Quaere: If it was not authorized to sell the stock, could it do so, and retain the price ? This would more properly come up on a trial of the cause on special pleadings. The judgment is affirmed. Sloan, J., concurs.