Cannon v. Farmers' Union Grain Agency

BROWN, J.- — In the case at bar, the findings of fact made by the court are very full. Among the ultimate facts necessary to support the judgment, we find evidentiary facts and conclusions of law. However, this court has said: “It is sometimes difficult to distinguish • between conclusions- of fact and conclusions of law, because it may be that a statement of fact cannot be made without including a conclusion, or it may be that a conclusion of law is such that, in the attending circumstances, it must be stated in the form of a statement of fact. ‘The line of demarcation between what aré questions of fact and conclusions of law is not one easy to be drawn in all cases. * * We deduce the ultimate fact from certain probative facts by a process of natural reasoning. We draw the inference or conclusion of law by a process of artificial reasoning ; but this last process is often in such exact accord with natural reason that the distinction is scarcely appreciable. # # If, from the facts in evidence, the result can be reached by that proc'ess of natural reasoning adopted in the investigation of truth, it becomes an ultimate fact, to be found as such.’ ” Oregon Home Builders v. Montgomery Inv. Co., 94 Or. 349, 356 (184 Pac. 487). The issues made by the pleadings present the following questions: Is the corporation bound by an erroneous date of the certificate of stock issued, sold, and delivered to the plaintiff? Second, was the sale of stock made to the plaintiff contrary to the terms of the Blue Sky Law (so designated for convenience) ? Third, did plaintiff purchase the stock in reliance upon fraudulent representations of defendants knowingly made? — 35 — We give below a synopsis of the facts as found by the trial court. In truth, a knowledge of the facts in this case will dispose of the legal questions presented at the hearing. • If, under the rules of evidence, the truth may be adduced relating to the sale of the stock to the plaintiff, the case presents no difficulty. The Farmers’ Union Grain Agency is a corporation organized, owned and controlled by farmers, under the laws of the State of Oregon, with its principal office located at Pendleton. Its directors are B. O. Earnheart, H. J. Bosenberg and W. W. Harrah, and its secretary and treasurer is B. W. Ayers. Prior to the second day of February, 1918, the capital of that corporation was $50,000, consisting of 5,000 shares of the par value of $10 each. On January 17, 1918, 3,708 shares of the capital stock of the corporation had been sold and issued to divers persons, leaving unsubscribed and unissued 1,292 shares thereof. On and prior to January 17, 1918, farmers residing in Athena and vicinity were endeavoring to induce the defendant corporation to build and operate at Athena a grain elevator for the use of the plaintiff Cannon and other citizens of Athena and vicinity. On this date, interested citizens called and held an informal meeting at Athena for the purpose of considering the construction of a grain elevator, at which meeting the plaintiff, with other citizens, was present and took part. The defendants were invited to attend, and did attend, that meeting. At that meeting the plaintiff, Boy Cannon, acting with various other citizens of the neighborhood of Athena, undertook to induce the Farmers’ Union Grain Agency to construct a grain elevator at Athena, and as a consideration for such co-operation plaintiff, acting with such — 36 — other citizens, in order that funds might he raised for the purpose of constructing such elevator, assured the defendants that if the Farmers’ Union Grain Agency would cause its capital stock to he increased they would subscribe for and take from that corporation a large amount of its increased capital stock. The plaintiff, acting with other citizens of his neighborhood then and there present, offered and agreed to and with the Farmers’ Union Grain Agency and its codefendants that if the capital stock should be so increased, he would subscribe for 180 shares thereof at the face value, to wit, $1,800; and a large number of other persons, then and there being, for the purpose of inducing the corporation so to increase its capital stock and to construct an elevator, subscribed for, agreed and promised to pay for a large number of other shares of such increased capital stock. As a further inducement, the plaintiff Eoy Cannon, acting with such other persons, and as a pledge of good faith and as an assurance that they would subscribe and pay for the increased capital stock in case such capital stock was increased, proposed and suggested that each subscriber would deposit with a committee which they, the subscribers, would select from the citizens and residents of Athena and its vicinity, a promissory note, or a check, for the amount offered to be subscribed and paid for at the face value thereof. Pursuant to such understanding and offer, Eoy Cannon executed and delivered to a committee there selected, his promissory note for $1,800, which he offered in payment for 180 shares of such increased capital stock, if so increased. At that meeting it was further understood and promised by the subscribers to such increased capital stock, that the notes and checks then signed by them should — 37 — be placed and left by the committee with the First National Bank of Athena, Oregon, to be held by it until such time as the Farmers’ Union Grain Agency should, through due and regular proceedings, cause its capital stock to be increased and issued; that upon the issuance of such stock and delivery thereof to the First National Bank of Athena in the amounts and for the number of shares respectively agreed upon, then the said notes and checks should be delivered and turned over to the Farmers’ Union Grain Agency; but in the event that the corporation should not succeed in increasing its capital stock, or should not issue and deliver to the bank such shares of increased stock, then and in that event the notes and checks would be returned to the respective parties who had executed them. Charles Kirk, George Ger-king and A. B. Coppock were selected as the committee to receive and deposit with the bank the notes and checks of subscribers, which they did. Pursuant to the conditional agreement to purchase stock, the directors of the defendant corporation regularly held a meeting at its office in Pendleton, Oregon, on the nineteenth day of January, 1918, called a special meeting of the stockholders and took all steps necessary to increase the capital stock of the corporation from $50,000 to $200,000. On February 2, 1918, the corporation commissioner of the State of Oregon issued to the defendant corporation a certificate of increase of its capital stock from 5,000 to 20,000 shares, and from $50,000 to $200,000 capital. On February 18, 1918, the defendant corporation caused to be issued to plaintiff Boy Cannon its certificate numbered 418 for 180 shares of the increased capital stock of the corporation and of the value of $1,800. Thereupon, the First Na — 38 — tional Bank of Athena, acting for plaintiff, received and accepted certificate of stock numbered 418, dated January 17, 1918, and in payment therefor surrendered and delivered to the defendant corporation plaintiff’s note for $1,800, face value, dated January 17, 1918 (date of the meeting at Athena), with interest from that date. The certificate of stock so issued and delivered to plaintiff was dated back to January 17, 1918, in order that any dividends or profits accruing upon the stock between January 17, 1918, and the eighteenth day of February of that year, the date of its issuance and delivery, might be received by the holder thereof as an offset against any interest that might accrue upon his note between the date of its face and that of its delivery. Certificate of stock numbered 418 was issued and delivered to, and accepted by, plaintiff Boy Cannon in pursuance of his offer to subscribe for and take the same if the stock of the defendant corporation should be so increased. ' This certificate of stock was taken and accepted by him after the corporation had increased its capital stock and was of the exclusive issue of the increased capital stock . of the corporation. It was not sold to him at a profit, nor on commission, neither was it offered for sale to the public. After receiving his certificate of stock, plaintiff voted the shares thereby represented at subsequent meetings of the stockholders. Moreover, plaintiff had full knowledge of all things done and transacted by the corporation, and at no time made any objection or offered any remonstrance relating to the stock or to the increase or the validity thereof, until this action was commenced; and the defendants, relying upon the offer, acts and promises of Boy Cannon as above stated, acted thereon and issued the increase^ stock — 39 — of the corporation, proceeded to build an elevator plant at-Athena, and expended a large sum of money, amounting to more than $50,000, in the construction and equipment thereof. Neither the defendants, nor any of them, made any false representations to plaintiff, or to any one, respecting the issuance of the stock or the sale thereof. Plaintiff was not fraudulently induced to give credit to the corporation, or induced to purchase the stock; neither did plaintiff act upon any representations or official acts or conduct of the defendants to his damage in the sum of $1,800, or in any other sum whatsoever. On the seventeenth day of January, 1918, the corporation was unable to pay dividends, but it was not unable to pay its debts, was not being operated at a loss, was not indebted to W. W. Harrah, R. O. Eamheart or H. J. Rosenberg, its directors. Neither were the defendants, or any of them, on that date, trying to sell stock in the corporation or to raise money by the sale of stock to pay themselves, or to relieve themselves from any liability upon any negotiable paper that the corporation had issued. Further, the codefendants of the corporation were in no manner liable for any debt of the defendant corporation. The plaintiff did not, on the twenty-fifth day of October, 1919, first, or at all, discover that the representation made by the defendants, or any of them, was false, or that at the time the stock was issued and sold to plaintiff by the defendants the corporation did not own the stock. The plaintiff did not, on the twenty-fifth day of October, 1919, first, or at all, discover that he had been deceived by the defendants in the manner alleged in his complaint. The stock sold to plaintiff was not in excess of the number — 40 — of shares which the defendants were allowed to issue and sell at the time such stock was sold to -plaintiff, and none of the defendants misstated or concealed any fact mentioned or alleged by plaintiff which materially, or at all, affected the value of the stock of the corporation, and the defendants have not perpetrated any fraud upon the plaintiff. 1. The findings of the court upon the facts shall be deemed a verdict. The court’s findings of fact may be set aside in the same manner and for the-same reasons as far as applicable, and a new trial granted: Section 159, Or. L.; Kyle v. Puppy, 19 Or. 186 (25 Pac. 141); Flegel v. Koss, 47 Or. 366, 370 (83 Pac. 847); Lewis v. Clark, 66 Or. 461, 463 (134 Pac. 1194); Warren v. Dinwoodie, 88 Or. 342, 344 (171 Pac. 1175); Bailey v. Hickey, 99 Or. 251, 256 (195 Pac. 372). In construing this section of the statute, this court has held over and over again that such findings made by the trial court cannot be set aside on appeal, provided there is any competent evidence to support them: Salem Traction Co. v. Anson, 41 Or. 562, 570 (67 Pac. 1015, 69 Pac. 675); Van de Wiele v. Garbade, 60 Or. 585 (120 Pac. 752); Sun Dial Ranch v. May Land Co., 61 Or. 205, 218 (119 Pac. 758); Norman v. Ellis, 74 Or. 168 (143 Pac. 1112); Morris v. Leach, 82 Or. 509 (162 Pac. 253); Warren v. Dinwoodie, supra. 2. The court found that certificate numbered 418, representing 180 shares of stock sold by the defendants to Cannon, was not an overissue, but was of the increased issue of the capital stock of the defendant corporation and was issued and delivered in accordance with a previous conditional subscription or offer made by Cannon on January 17, 1918, for a block of the increased capital stock of the corporation. This finding — 41 — is bottomed upon competent evidence and is binding upon us, regardless of any evidence to the contrary. Stock certificate numbered 418 was incorrectly dated. However, the plaintiff was not deceived thereby. That a writing is truly dated is not a conclusive, but a disputable, presumption of evidence: Section 799, par. 23, Or. L. The court was clearly within the law in holding that the true date of the certificate of stock could be established by parole. This is not a case where the minutes of a corporation are being contradicted by parole. No minutes were kept, nor was there made any written record of the conditional subscription or offer of the plaintiff and his associates to purchase the stock of the defendant corporation. Again, the minutes of subsequent meetings do not show the date of the issuance of certificate numbered 418. “The doctrine is now almost universally recognized that parol evidence is admissible to prove the unrecorded acts and transactions of the corporate body, or of its board of directors. * * It necessarily follows, then, that the acts of corporations, in the absence of a record, may be proved by the testimony of competent persons. And where no minutes are kept of the proceedings of a meeting, they may be proved by parol.” 2 Thomp. Corp., § 1847. 3. The United States court, in a very instructive case, held that most corporate acts can be proved as well by parol as by written entries: Handley v. Stutz, 139 U. S. 417 (35 L. Ed. 227, 11 Sup. Ct. Rep. 530, see, also, Eose’s U. S. Notes). In the case of German Ins. Co. v. Independence School District, 80 Fed. 367 (25 C. C. A. 492), and based upon the doctrine enunciated in Handley v. Stutz, supra, evidence was admitted showing the proceedings of a school board which were not recorded. In the absence of a — 42 — record, the acts of corporations may be proved in the same manner as the acts of individuals, and, if no direct evidence can be adduced, facts and circumstances may be proved from which the acts may be inferred: Moss v. Averill, 10 N. Y. 449. The authorities holding that parol evidence may be introduced to show matters not of record are many: 4 Fletcher, Cyc. Corp,, p. 4052. “Where the minutes contain a record of action taken, it will be presumed, prima facie, that the record covers the entire action. This is not conclusive, however, and parol evidence may be introduced to show what was in fact done. Furthermore, if it is apparent upon the face of the minutes that they are incomplete, they cannot be treated as conclusive evidence of what transpired.” 4 Fletcher, Cyc. Corp., p. 4054. The plaintiff alleges that defendants sold him stock of their own issue without obtaining a dealer’s permit from the corporation commissioner of the State of Oregon, and that for that reason the sale is void. The findings of the' court are to the effect that the defendant corporation was not a dealer within the meaning of the Blue Sky Law, when engaged in its transaction with plaintiff. The court found that the stock was not sold to Cannon at a profit or on com-, mission, nor was that stock offered for sale to the public. Looking to the Blue Sky Law of Oregon for the definition of “dealer,” we have: “The word ‘dealer’ within the meaning of this act, shall include every * * corporation which is now engaged, or which shall hereafter engage in the selling to others at a profit or on commission * * any stocks, bonds, notes, contracts or other securities of whatsoever kind or character # # . And, provided further, that any * * domestic corporation * * doing — 43 — business within this state * * which shall hereafter offer its own securities for sale to the public, shall be considered a dealer within the meaning of this act.” Section 6838, Or. L.; Section 1, Chapter 324, Laws 1915. The court found, and is abundantly supported by the evidence that the defendants made no fraudulent representations- to the plaintiff. The case is affirmed. Affirmed. Rehearing Denied.