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127 Minn. 393.

evidence we are not prepared to say it was misleading. When stock in a corporation [396] has not figured in the markets, and there have been no sales or dealings therein, its actual value must be determined at the fair price which a person who desires to buy would be willing to pay, taking into consideration the original capital, how far there has been profit or loss in the business carried on, the assets and liabilities, the future prospects, and everything that goes to affect the value of the shares of stock. It is also claimed that the verdict is perverse, or demonstrably wrong. The record is very meager as to the nature of the business undertaken by this corporation. It would seem, however, that three or four men formed the corporation presumably to examine, audit or open books of account. They agreed upon the salary each was to draw. Some real estate was held, but whether this was in part payment for stock or a side issue in the business does not appear; also furniture and fittings were acquired; and some loans made or credits given. There is no evidence as to the actual value of these items, save the value as carried on the corporation books on March 31, 1911, at which time there was cash on hand or in bank of $5,327.57. The books also show that during less than a year while plaintiff was connected with defendant, there was an impairment of the capital of more than $2,000 and, as stated above, five months later an impairment of more than $3,000. No dividend was ever declared, but the salaries of the officers were speedily depleting the capital. We have looked in vain for any earnings from the business carried on. Under these circumstances we are not prepared to hold that the verdict of the jury, fixing the value of the 220 shares of stock converted at $71 less than the price plaintiff agreed to pay for the 100 shares, is not fairly supported by the evidence.

in case the conversion was proven the meas- great deal of assistance. But in view of the ure of the damages would be the actual value of the stock converted; that ordinarily that would be the measure, but it appeared that the stock had no market value since it was not listed, quoted or offered for sale; that evidence had been introduced tending to show the condition of the business of the company; that the par value of the stock was to be considered by the jury, but was not to be taken, as contended by plaintiff, to be the measure of recovery in the [395] absence of absolute proof by defendant that it was not worth that amount. The court then continued: "I am of the opinion that the par value of the stock is one of the things to be considered by you, and in doing so you should take into account the financial condition of the company, the nature of the business and all other things which will enable you to form an opinion as to the actual value of the stock. I am aware of the fact that when I say value of the stock I am using an ambiguous term, because we have to have some kind of yard stick to measure the value, as the ordinary standard does not apply in this case. I know of no better rule for you to adopt, if you get that far in the case, than to ascertain and determine from the evidence what a person who wanted to buy stock in this corporation would reasonably expect to pay for this block of 220 shares." There were no instructions requested, and no corrections or modifications asked when the case was submitted to the jury. As the evidence stood we believe the substance of the charge pertinent and proper. It is true that the par value of the shares of corporate stock may be taken as the actual value in the absence of other evidence bearing on the question. Thompson, Corporations, § 3496; Harris's Appeal (Pa.) 12 Atl. 743; Brinkerhoff-Farris Trust, etc. Co. v. Home Lumber Co. 118 Mo. 447, 24 S. W. 129; Moffitt v. Hereford, 132 Mo. 513, 34 S. W. 252. In the case at bar it was shown that after the corporation had been in operation a little over a year its original capital of $10,000 had dwindled to $6,846.69 in book assets. This is adequate reason for saying that the par value was not presumptively the actual value of the stock. In Uncle Sam Oil Co. v. Forrester, 79 Kan. 611, 100 Pac. 512, it was held that, where in an action for conversion the complaint alleged the value to be less than par, the introduction of the share certificate of stock showing its par value, was not sufficient evidence to permit a recovery for the damages alleged. The rule given by the court that the jury was "to ascertain and determine from the evidence what a person who wanted to buy stock in this corporation would reasonably expect to pay for this block of 220 shares," may not have furnished a Ann. Cas. 1916C.-41.

Order affirmed.

NOTE.

Measure of Damages for Conversion of Shares of Stock.

The measure damages for the conversion of shares of stock is the fair value of the stock at the time of the conversion. Goodall v. Clarke, 21 Ont. L. R. 614, 18 Ann. Cas. 608 (appeals dismissed 23 Ont. L. Rep. 57, 18 Ont. W. Rep. 185, and 44 Can. Supp. Ct. 284). The reported case holds that the value of corporate stock for the purpose of awarding damages for its conversion, where it has no market value, must be determined by considering the fair price at which a purchaser would buy the stock in view of the original.

capital of the company, its assets and liabilities, its profit and loss account, its future prospects, and all other factors which tend to affect the value of the shares. The recent case of Hetrick v. Smith, 67 Wash. 664, 122 Pac. 363, supports, to a certain extent, the doctrine of the reported case. It appeared therein that a trustee had wrongfully converted to his own use the stock of a company as well as its business, goods, fixtures and earnings. In an action by the beneficiary, who was also the manager of the company, for converting the stock it was held that as the shares had no market value their value for the purpose of assessing damages should be ascertained by showing the value of the property and business of the corporation at the date of the conversion and deducting therefrom its liabilities at that time. It was further held in that case, that as the trustee had notified the beneficiary not to collect the accounts receivable they should be figured at their face value, and that an inventory of the merchandise on hand made by two witnesses at a time near the date of the conversion should be accepted to establish its value where the cestui que trust herself offered no evidence as to its worth. In Central Trust Co. v. West India Imp. Co. 144 App. Div. 560, 129 N. Y. S. 730, it appeared that securities consisting of corporate stocks and bonds which had no market value had been sold at auction by a trust company with which they had been pledged. In an action for their value by a person who proved his prior equitable right to the securities, the court said: "Under those circumstances, the court will seek, by such evidence as is available, to ascertain, as nearly as possible the amount of damages which plaintiff has suffered, and will not halt 'because the situation is novel, and the ordinary methods proving values are not available, but will resort to some practical means that will be just to both parties.' . . On March 1, 1898, the defendant Trust Company undertook to deal with the securities pledged to it, all of which were covered by plaintiff's prior mortgage, by selling them at auction for the sum of two hundred thousand dollars, thereby substituting that sum for the securities themselves. This sum must be taken as representing the value of the securities on the day of the sale, and the defendant surely can have no just cause of complaint if it be now held chargeable with the price received for the securities at a sale conducted by its order, at a time selected by itself. It is of no moment that the securities were sold in a single lot so that it cannot be determined how much was bid for the stock, how much for the second mortgage bonds, and how much for the chance of procuring first mortgage bonds. All of these securities were subject to plaintiff's prior lien, and the manner of

their sale was of defendant's own choosing. Nor does it affect the price bid as an evidence of value that the securities were bid in by McDonald, who was liable upon the notes intended to be secured by the pledge of the securities to defendant Trust Company, or that notes were turned in, instead of cash, for a portion of the purchase price. All this was with defendant's assent, which by so assenting applied to the payment of the notes the securities which it had been warned were claimed by plaintiff. The case is precisely the same as if the defendant Trust Company had sold the securities for cash and had turned that cash over to the holders of the notes. As the plaintiff had the right at all times to possession of the securities, that right at once attached to the proceeds, when the defendant Trust Company had consummated the conversion of the securities by selling them. It then became a trustee de son tort for the benefit of plaintiff, if the latter ultimately succeeded, as it has done, in establishing its preferential right to the securities. From that moment the plaintiff became entitled, at the very least, to the price realized. Upon the undisputed evidence in the case, therefore, it becomes possible to estimate the plaintiff's damages at the sum of two hundred thousand dollars, with interest from March 1, 1898."

It has been held that the measure of damages for the conversion of shares of stock is the market value on the day of the conversion, that is, the time when the owner, being entitled to the immediate possession of the stock, demands it and his demand is refused. Grimes v. Barndollar, 58 Colo. 421, 148 Pac. 256; Burns v. Shoemaker, 172 Ill. App. 290; Robinson Min. Co. v. Riepe, 37 Nev. 27, 138 Pac. 910. See also Hetrick v. Smith, 67 Wash. 664, 122 Pac. 363. Under this rule the owner of the shares is entitled to an additional amount equal to any dividends paid on the converted stocks up to the Idate of his demand for them. Grimes v. Barndollar, 58 Colo. 421, 148 Pac. 256. And he is also entitled to interest on the entire amount from the date of the conversion to the time of the verdict. Grimes v. Barndollar, 58 Colo. 421, 148 Pac. 256; Burns v. Shoemaker, 172 Ill. App. 290; Robinson Min. Co. v. Riepe, 37 Nev. 27, 138 Pac. 910.

Where corporate stocks have been converted by a malicious wrongdoer the owner may recover an amount equal to the highest prices reached by the stocks to the time of trial, provided it appears that the owner has brought his action promptly after the conversion and that he has pressed the suit with reasonable celerity, and also that the stocks made their top prices during the time when the action was being so pressed. Kavanaugh v. McIntyre, 74 Misc. 222, 133 N. Y.

113 Ark. 253.

S. 679, judgment affirmed 151 App. Div. 910, 135 N. Y. S. 1120. In that case it was also held that, under such circumstances, the owner was not entitled to interest.

In California the measure of damages for the conversion of shares of stock is regulated by statute which declares as follows: "The detriment caused by the wrongful conversion of personal property is presumed to be: First. The value of the property at the time of the conversion, with the interest from that time, or, where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party." See Myers v. Chittyna Exploration Co. 20 Cal. App. 418, 129 Pac. 469; Potts v. Paxton (Cal.) 153 Pac. 957.

In Shewalter v. Wood (Mo.) 183 S. W. 1127, it was held that where the certificate of a share of stock which was alleged to have been converted was not indorsed, and there was no proof that the owner thereof had lost the share which it represented and had not therefore been deprived of his status as a shareholder, he should recover nothing beyond what it would cost him to procure a substituted certificate. In that case it was said obiter that where shares of stock have been converted the measure of damages, in the absence of proof to the contrary, is the face value of the stock. The same statement is made in the reported case.

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wise, the county court or judge thereof in vacation shall appoint an overseer for such district or to fill such vacancy, where a road overseer elected to succeed himself died before the commencement of his second term, the county judge, upon his failure to qualify for the second term, had power to appoint an overseer, since the phrase "or otherwise" should be given its broadest and most compre.hensive meaning, "in a different manner, in any other way," it being the intention of the legislature to authorize the county judge to appoint where there is no election or where the person elected for any reason fails to qualify.

[See note at end of this case.]

Appeal from Circuit Court, Sebastiam county, Greenwood District: HoN, Judge.

Action to try title to office. Virgil Townse ley, plaintiff, and W. A. Hartsfield, defendant. Judgment for defendant. Plaintiff appeals. AFFIRMED,

[253] At the general election in 1910, Frank Irvin was elected road. overseer of Center Township in the Greenwood District of Sebastian County, Arkansas. The statute provides that his term of office shall be the same as that for township and county officers. See Act No. 177, Acts 1905, approved April 18, 1905. Irvin entered upon the discharge of his duties as such road overseer, and continued in said office until his death, some time in October, 1912. At the general election held in 1912, he was again elected to the office of road overseer. He died before his first term expired, and on the 29th day of October, 1912, the county judge of Sebastian County appointed Virgil Townsley to fill the vacancy caused by his death. In November, 1912, a new county judge having come into office, W. A. Hartsfield was appointed road overseer for said township; and the latter qualified and entered upon the discharge of the duties of said office. This is a proceeding by Virgil Townsley against W. A. Hartsfield to [254] try the title to said office. The decision of the lower court was in favor of Hartsfield, and Townsley has appealed.

Jesse A. Harp for appellant. Pryor & Miles for appellee.

[255] HART, J. (after stating the facts).— It will be noted from the statement of facts that Irvin died while he was serving his first term, and before his new term had commenced. The general rule is that if the deceased was himself the incumbent of the office and was elected to succeed himself, a vacancy is created in the first term by his death; but, by the weight of authority, at the commencement of the second term, no

new vacancy arises, and the appointee for the balance of the first term holds over until the election and qualification of his successor. State v. Speidel, 62 Ohio St. 156, 56 N. E. 871; State v. Elliott, 13 Utah 471, 45 Pac. 346. See, also, People v. Lord, 9 Mich. 227. That is to say, when one who is holding an office, and who has been elected to succeed himself, dies before entering upon. the new term, a vacancy is thereby created in the term in which he was serving, but not in the new term for which he has been elected, and upon which he has not entered. Therefore, the one who is duly appointed and qualified to fill the vacancy thus created will hold the office for and during the unexpired term of the predecessor and until his successor has been elected or appointed and qualified in the manner provided by law. It is not disputed by counsel for Hartsfield that Townsley's appointment was valid, but it is claimed that his term ended when Hartsfield was appointed in November, pursuant to the act of 1911, which provides for the filling of vacancies that may occur in the office of road overseer, and which, so far as relates to the question at issue in this appeal, is as follows:

"That when any vacancy in the office of road overseer shall occur from any cause whatever, or upon failure to elect by a tie vote or otherwise, the county court or judge thereof in vacation shall appoint an overseer for such district or fill such vacancy, as the case may be, whose term of service shall expire at the time designated for all county and township offices to expire. Such judge [256] shall make or cause to be made a true record of appointment."

The office of road overseer was created by statute, and it may be filled by election or by appointment, just as the statute may prescribe. It is manifest from the clause of the act just quoted that when Irvin died, the vacancy caused by his death should be filled by the county court. The section likewise provides that upon the failure to elect by a tie vote or otherwise, the county court, or judge thereof in vacation, shall appoint, etc. The words "or otherwise," in law, when used as a general phrase following an enumeration of particulars, are commonly interpreted in a restricted sense as referring to such other matters as are kindred to the classes before mentioned. Century Dictionary. The author says the phrase "or otherwise," when following an enumeration, should receive an ejusdem generis interpretation. Otherwise is also defined by Century Dictionary, the Standard Dictionary and by Webster, as meaning, "In a different manner; in any other way." We think the phrase "or otherwise" in the act under consideration, was intended to be used in its

broadest and most comprehensive sense. The phrase "or otherwise" is not used in the statute as a general phrase following an enumeration of particulars; but it follows the words "upon failure to elect by tie vote," and is placed in juxtaposition to these words. When the whole clause "upon failure to elect by tie vote or otherwise," is considered together with reference to the purpose and object of the act, it is evident that the Legislature intended to give the county judge the power to appoint where no one was elected or where the person elected failed for any reason to qualify when the time for entering upon the new term arrived. In short, we think the Legislature meant by the clause under consideration to give the county judge the power to appoint where there was no election or where the person elected for any reason failed to qualify. The county judge, pursuant to this section, exercised his power to appoint, and when he did so, the person appointed had a right to the office, and [257] having qualified and entered upon the discharge of the duties of the office of road overseer, he was the lawful incumbent of that office. It follows that the judgment of the lower court must be affirmed.

NOTE.

Legal Meaning of "Otherwise."

Generally, 644.

With Other Words:

Limitation to Things Ejusdem Generis, 645.

Construction According to Intent, 649.

Generally.

"Otherwise" is always a relative word, meaning, in general, different from that to which it relates. Black v. Delaware, etc. Canal Co. 22 N. J. Eq. 400; People v. Feitner, 71 App. Div. 479, 75 N. Y. S. 738; Philadelphia v. Fidelity, etc. Co. of Maryland, 46 Pa. Super. Ct. 313. In the case first cited it appeared that by an act of the legislature the United Railroad and Canal Companies of New Jersey were authorized "to consolidate their respective capital stocks; or to consolidate with any other railroad or canal company or companies, in this state or otherwise, with which they are or may be identified in interest, or whose works shall form with their own connected or continuous lines; or to make such other arrangements for connection or consolidation of business with any such company or companies, by agreement, contract, lease, or otherwise, as to the directors of said United Companies shall seem expedient." It was contended

113 Ark. 253.

that the act did not authorize the consolida- Cal. 432, 73 Pac. 189, the court construed tion or connection of business with any railroad of another state. The court said: "The question depends upon the meaning and effect of the word otherwise. "This is certainly an inapt word to designate companies out of the state, by being placed in opposition to the words 'in this state.' It is inapt, because its proper use is to express difference of means or manner, and not of place. The word is used here in a way that admits of no change of place in the sentence, even if such change can ever be permitted. 'Companies in this state' are one subject of the provision; the word "or" plainly denotes that some subject is to be indicated. If the word elsewhere or otherwhere had been used, it would have appropriately expressed the meaning intended.

It means companies different from or other than companies in this state." In Thompson v. Highland Park, 187 Ill. 265, 58 N. E. 328, the court said: ""Otherwise' is defined by the Standard Dictionary as meaning 'in a different manner;' 'in another way;' 'differently;' 'in other respects.' By Webster, 'in a different manner;' 'in different respects;' and by the Century Dictionary, 'in a different manner or way;' 'differently;' 'in other respects.'"

In People v. Greenwall, 115 N. Y. 520, 22 N. E. 180, it was held that the word "otherwise" was not used in the sense of "another." That case involved the construction of a statute providing that the killing of a human being "without design to effect death, by a person engaged in the commission of or in an attempt to commit a felony, either upon or affecting the person killed or otherwise," was murder in the first degree. It was contended that the words "or otherwise" meant "or another" and that murder in the first degree was not charged by an indictment alleging that the defendant killed the deceased "while engaged in the commission of or attempt to commit a felony either upon or affecting him or some other person." The court said: "We think it is entirely clear that it was intended to make the killing of any human being, while engaged in the commission of any felony, murder in the first degree, whether the felony was committed upon or affected any person or concerned property only." See also People v. Miles, 143 N. Y. 383, 38 N. E. 456. In Galveston County v. Gorham, 49 Tex. 279, it was held that the word "otherwise" meant "by liko means." In that case an occupation tax law was discussed and the court said that a traveling agent or drummer was within a provision relating to persons who sold goods by sample, card, "or otherwise." See also Fleming v. Rome, 130 Ga. 383, 61 S. E. 5. In Contra Costa Water Co. v. Breed, 139

an article of the state constitution imposing on a municipality the duty to establish the rates to be charged for water, and declaring that "any person or company collecting water rates 'otherwise than as so established' shall forfeit its franchises and water-works." The court said that the language of the provision was "obviously susceptible of the construction that it refers to a case where the rates had been established by the governing body, and that the word 'otherwise' is to be given one of its usual meanings, namely, 'contrarily,'-in violation of the established rates." See also Lynch v. Murphy, 119 Mo. 163, 24 S. W. 774. But in King v. De Coursey, 8 Colo. 463, 9 Pac. 31, the court said: "The form of the answer, that defendant was not indebted to the plaintiff as alleged in the complaint, or otherwise,' must be considered as a denial that the defendant was in any manner indebted to the plaintiff on account of the subject-matter of the complaint, whether in the precise form as stated or not." In Territory v. Albright, 12 N. M. 293, 78 Pac. 204, it was said: "We do not hesitate to say that wherever the word otherwise is used. following specific terms, that no authority can be found that will give it its broad significance when used by itself, but that they restrict it to the meaning of the specific words and terms preceding it." And in Bosworth v. Smith, 9 R. I. 67, the court said: "Indeed, we deem it doubt

ful if the phrase, 'whether barred by the statute of limitations or otherwise,' covers anything except the statute of limitations. The phrase may mean, as in the discussion of the case it has been considered to mean, whether barred by the statute of limitations or barred otherwise, and it may mean whether barred or otherwise, (that is, whether barred or not barred) by the statute of limitations. If the phrase had been 'whether outlawed or otherwise,' it would have been taken to mean whether outlawed or not outlawed."

With Other Words.

LIMITATION TO THINGS EJUSDEM GENERIS.

"Otherwise," when following an enumeration, is generally confined to matters or things of the same kind or nature as those enumerated.

England.-Portsmouth v. Smith, 13 Q. B. D. 184; Morgan v. London General Omnibus Co. 13 Q. B. D. 832, 53 L. J. Q. B. 352; Cook v. North Metropolitan Tramways Co. 18 Q. B. D. 684; Crusoe v. Bugby, W. Bl. 766, 3 Wils. C. Pl. 234.

Canada.-Rawlinson v. Wells, 13 Can. L.

T. 120.

United States.-U. S. v. Sheldon, 2 Wheat. 119, 4 U. S. (L. ed.) 199; Ham v.

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