Tasker

I concur in the judgment. The action is brought to recover upon the statutory liability of defendant Phelps as a stockholder, to pay a proportionate part of money due on a promissory note executed by Wilmont Auto Livery, a corporation, in favor of Wilmont Auto Works and Garage Company, a corporation, which note passed by assignment through successive holders, until it came into the hands of the plaintiff. The intervener, claiming prior rights by assignment of the note, seeks to enforce the same obligation.

The note was dated July 12, 1928. At the trial, defendant admitted that on that day he was the owner of 249 shares of the 500 shares of subscribed stock of the maker of the note, and admitted his liability to the extent measured by that ownership. He claimed, however, and it appears to be the fact, that he did not become the owner of the additional 249 shares charged against him, until after the date of the note. He also contends that the note was given only as evidence of prior indebtedness, and that there is no evidence of the amount of stock owned by him at the time when the indebtedness was originally incurred.

The court should have found as a fact that the note was given…

Both of the appeals really depend upon the objection that there is not sufficient evidence to support the findings. An examination of the evidence shows that, with the exceptions hereinafter noted, each and every of the findings necessary to support the judgment is fully supported by direct evidence. It is true that there was evidence that would support different findings, but the findings of the trial court, under such a record as we have here, are binding upon this appellate tribunal. The exceptions above mentioned are covered by amendments, which are hereby made in order to conform to the evidence, as follows:

Finding II is amended to read as follows: “That on the 12th day of July, 1928, and for some time prior thereto and at all times thereafter, said corporation had subscribed and outstanding a total of 500 shares of its capital stock.”

Finding III is amended to read as follows: “That on July 12, 1928, the defendant Harry C. Phelps was a stockholder of said Wilmont Auto Livery, and had 249 shares of its subscribed, issued and outstanding capital stock, and at the time of delivery of the promissory note set out in the complaint, said defendant was the owner of 498 shares of…