Anthony v. Hillsboro Gold Mining Co.

Opinion by Mr. Chief Justice Eakin. 1. The statute of 1874 (Laws 1874, p. 97, § 4) amending Section 805, D. & L. Gen. Laws, authorized the court in equity suits to appoint a referee to take the testimony in the case and report his conclusions of fact and law thereon. This statute was amended in 1893 (Laws 1893, p. 26) by authorizing the court to refer the suit to a referee in the cases provided in Section 397, Hill’s Code 1892 (Section 405, L. O. L.), to take the testimony in the case and report the same to the court, thus eliminating the provisions authorizing the referee to make findings. Section 397, Hill’s Code 1892, as amended in 1893 (Laws 1893, p. 26), provided that suits shall be tried by the court unless otherwise referred (as provided in Section 815, Hill’s Code 1892 [Section 838, L. O. L.]), “provided that in districts composed of no more than one county and having more than one judge of the circuit court, no cause shall be referred to a referee without the consent of all parties to such suit in writing filed in said cause except in suits involving the examination of long and complicated accounts.” Washington County is in a district composed of four counties, at that time having but one judge. Thus, except in districts having more than one judge and composed of but one county, the judge is authorized to refer cases for the taking of testimony. Therefore, the reference of this case was not unauthor — 262 — ized, even when made without the consent of counsel. But the referee had no authority to make findings. 2. The fact, however, that such findings were made by him and adopted by the court as its findings, and that a decree was rendered thereon, does not render the decree void, and as the suit is tried anew in this court, the ruling of the lower court in regard thereto is not reversible error: Sutherlin v. Bloomer, 50 Or. 398 (93 Pac. 135). 3. As to the effect of the attempted sale of stock of plaintiff, it is sufficient to state, that the by-laws of the corporation provided that such sale may be had upon four weeks’ notice, while the statute (Section 6686, L. O. L.) provides that the corporation is authorized to make by-laws for the sale of any portion of its stock for unpaid assessments, “provided that no such sale shall be made without thirty days’ notice of time and place of sale.” Therefore, the by-laws of the corporation, so far as they provided for the sale of stock for nonpayment of assessments, are void. The corporation was without authority to make such sale, and it is not validated by the fact that the notice was given for 30 days, as the statute does not provide for or authorize the sale. The by-laws of the corporation must be the source of its authority. 4. Defendant also pleads and attempts to prove that plaintiff is estopped from claiming the stock for the reason that he has abandoned it, and declared that he would have nothing more to do with defendant, its officers, or stock; that defendant’s officers relied thereon and advanced more than $17,000 to defendant company for the purchase of property and the operation thereof. The only circumstance testified to, tending to establish an estoppel, is to the effect that, at the board meeting on November 20, 1903, while a settlement was under consideration between plaintiff and defendant, plaintiff said, that if the company would not pay him $200 a month — 263 — and advance $5,000 for improvement for the next season, he would have nothing further to do with it. J. W. Shute testified that there was not a word spoken about' stock; that plaintiff said he had no more money to put in, and was not going to have any more to do with it. “It was plain enough, his actions, just what he said, that he wouldn’t have anything more to do with it; and he went off and I never heard anything about him for some time afterward. * * He never mentioned it (stock) or asked for it at any place or time.” W. D. Hare and J. C. Shute testified to the same effect. But this constitutes no representation of any fact that justified defendant in assuming that he had surrendered his stock or abandoned it to the corporation. His acts and declarations only relate to what he would or would not do in the future, and was not a representation of any existing fact. The very first element of an estoppel is absent, namely, a representation of a fact—a past or present state of things. Here it was a mere statement of the intention of plaintiff. There was no element of agreement as to the future. Bigelow, Estoppel 570. His stock represented his interests in the corporation of which the certificate was the evidence of his title, and it was not lost or transferred by abandonment for failure to pay the value thereof. Nor did his statements involve the stock in any manner, and if the officers of the defendant anticipated his refusal to bear his portion of the burdens, as represented by his stock, they should have taken steps to cancel it or otherwise terminate his title thereto. The conduct of the officers thereafter shows that they did not consider that plaintiff had abandoned it, as at the meeting of the board of November 20, 1908, at which plaintiff was present, and participated in the business of the meeting, it was ordered that “A. W. Anthony be charged against his stock to be issued to him for his share, beginning with the $5,000 paid November 15, 1903, — 264 — on mine.” Again, at the meeting of May 21, 1904, an 80 per cent assessment was levied on the stock of the company, and thereafter defendant proceeded to sell plaintiff’s stock for nonpayment thereof. Therefore, there was no abandonment of his stock or conduct that estopped him from claiming it. 5. It is also urged that plaintiff’s stock was not paid in full, and therefore he is not entitled to have it issued. Thus it is necessary to ascertain the terms of the agreement under which the service was rendered. Plaintiff claims that he made his agreement with J. W. Shute early in September or late in August, 1902, as they rode from the mine to Sparta, when Shute first talked of purchasing it, by which he was to have a laborer’s wages for the work done, and that his service as superintendent was to pay the balance due on his stock. He says that was the only agreement he had about the stock; that nothing was said about the amount, its value or the capital stock of the corporation; nor how long he was to serve for the stock. Again he says: “Mr. Shute at that time had no associates. He went over there to examine that mine, and he seemed pleased with it, and on the way back he agreed and asked me if I would superintend the mine provided he bought it.” Evidently no arrangement had been made at that time to incorporate, nor any agreement made binding Mr. Shute. On the contrary Shute expressly denies that he made such an agreement, and W. D. Hare testifies that on or about November 20, 1902, at Hillsboro, an agreement was made by which “Anthony was to put in his time and Mr. Shute, Joseph and I. and Artie (meaning J. W. Shute, J. C. Hare, himself, and A. C. Shute) was to furnish the money to run the mine, to operate for that year. * * He was to put in his time against the use of our money in operating it.” J. W. Shute testified, that “he (Anthony) was willing to take hold for the season and — 265 — run it if we would furnish the money to fix it up and run it through. * * He said, T am going to take chances with you, and if you put in the money * * to show you I have faith in it I am willing to take chances with you. I will put up my time against your money.’ ” This is evidently the arrangement under which Anthony rendered the service, and not that his time was to be the compensation for the stock. The money for the expenses and operation of the mine was placed to plaintiff’s credit at Baker City, and without knowledge of the corporation he drew wages for himself, at ordinary miner’s wages (namely, $558.50). Later, after some controversy, a small balance due upon the settlement was paid to him by the company. His stock by agreement is credited with the $200 consideration for the option. According to the account book, the money advanced by the stockholders, for expenses and on the purchase price of the mine, has been credited as payment on their stock, paying for it in full, and plaintiff is entitled to a credit for his season’s work, less the cash he has drawn, viz., $246.50, being a sum proportionately equal to the amount advanced by the other stockholders for the improvement and operation of the mine (which was $4,000 or 80 per cent of their stock). The act of the corporation in settling the balance of plaintiff’s account, which included his wages, in no manner affects or,reduces the amount due on the stock. Therefore, the decree of the lower court will be modified to the effect that, upon the payment by plaintiff of $553.50, with interest thereon at 6 per cent per annum from May 21, 1904, the date of the assessment, said 1,000 shares of stock in defendant company be issued to plaintiff; and that each party pay his own costs in both courts. Modified. Mr. Justice McBride, having tried this cause in the lower court, took no part in the decision. — 266 — [114 Pac. 95.]