Cary v. Leszynsky

The bill of exceptions brings here a question as to the admissibility of evidence, and also the contention that upon all the evidence the plaintiff was not entitled to maintain the action.

1. The exception to the admission of evidence has not been alluded to in the defendant’s brief, and has no merit. It was to allowing a clerk in charge of the transfer department of the trust company which had charge of the transfer books of the mining company concerning the stock of which the action was brought to testify to matters within his personal knowledge and relevant to the issue upon trial.

2. Assuming that the written agreement of December 17, 1898, because of the characterization in it of the stock which by it the defendant agreed to transfer as “ pooling shares ” impliedly contemplated a transfer only after the termination of the pooling agreement, the evidence justified a finding that the pool terminated by its own limitation on July 1,1899, more than six months before the death of the plaintiff’s intestate.

The evidence upon the question of the acts of the defendant looking toward a transfer of the shares in accordance with his agreement was conflicting. He testified to writing ah order for the transfer and that the plaintiff’s intestate delivered this order to the secretary and that the shares thereupon were transferred. But there was other testimony that the defendant did not give such an order, that no such order was presented to the secretary, that no part of the shares was issued to the plaintiff’s intestate, and that the defendant protested against their issue. The acknowledgment in the written agreement of *46the receipt by the defendant .of the price of $841.50, and the testimony both of the defendant and of another witness justified a finding that the whole sum sought to be recovered was the consideration which had in effect been paid to the defendant upon the making of the agreement, and as moving from the plaintiff’s intestate. The evidence justified a finding that the defendant neglected to perform his agreement to transfer the shares. Neither the fact that the plaintiff’s intestate was connected with the pool as member and trustee, or that he was an officer of the company, or that there had been an overissue of its stock, constitutes a defence to the present action.

Exceptions overruled.