Decker v. Hays

209 So. 2d 378, 282 Ala. 93, 1968 Ala. LEXIS 1093
CourtSupreme Court of Alabama
DecidedApril 4, 1968
Docket3 Div. 331
StatusPublished
Cited by17 cases

This text of 209 So. 2d 378 (Decker v. Hays) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Decker v. Hays, 209 So. 2d 378, 282 Ala. 93, 1968 Ala. LEXIS 1093 (Ala. 1968).

Opinion

MERRILL, Justice.

Appellee Hays sued appellant Decker for the alleged balance due for work and labor done as a broker in the transfer of stock in insurance companies. Verdict and judgment were for $4,065.00. Appellant’s motion for a new trial was overruled.

Appellee’s complaint was in two counts. Appellant filed a plea of the general issue and filed pleas in recoupment for $5,000.00, which he had paid appellee as an advance on the work he had agreed to do, but al *95 leged that he had failed to perform his contract or agreement.

The main conflict in this case was a question of fact as to what the terms of the agreement were. Appellee’s position was that he performed fully by arranging the transfer of shares in two insurance companies and that the transfer was effected. Appellant’s position was that the transfer of shares was effected by appellee, but he failed to assist appellant in getting control of the board of directors so that the two insurance companies could be merged.

Appellee was a commission broker, specializing in insurance companies. Appellant was interested in acquiring control of an Alabama insurance company. One D. F. Shamberger, of Salem, Illinois, owned 50,-000 shares of common stock, the controlling interest, in Universal Southern Life Insurance Company, and appellee arranged a swap of Shamberger’s stock to appellant in exchange for 65,000 shares of common stock, owned by appellant, in Life Underwriters Insurance Company of Shreveport, Louisiana.

Appellant testified without objection that on June 26, 1965, he received the 50,000 shares of stock in Universal Southern Insurance Company from Shamberger; that . on August 27, 1965, Shamberger resigned as a director, suggesting to appellant a plan of procedure whereby appellant could have control of seven of the twelve directors as he, Shamberger, had had, but appellant did not think this was necessary; and that on November 1, 1965, a director’s meeting was held, at which appellant was elected chairman of the board, chief executive officer and given authority to transfer the books and records to Shreveport, Louisiana.

We quote from appellant’s testimony on direct examination as to how he failed to get control of the company:

“A Well, of course, once I had acquired the 50,000 shares of stock—
“Q You did acquire the 50,000 shares of stock, did you?
“A Right. Then the board Mr. Sham-berger had on, his portion of the board— there are twelve members on the board— Mr. Shamberger had seven members on the board so he had control. Now, Mr. Shamberger said, ‘Now, we will go down and release one at a time and you can place one of your board members on the board. This way you will come out with seven and have control of the company.’ And I had talked to the board members and felt that this would not be necessary. That is, the board members of Universal Southern appeared that they were going to go along with everything. So we all, accepted the resignations of all the board members, seven, that were working with Mr. Shamberger. So that meant then there were five board members of Universal Southern that were opposed to Mr. Shamberger, which has been brought out, and then a board meeting was called, and these people were all released, the people Mr. Shamberger released as board members. And this left the five members who had appeared they were going along with me. After getting in they would not allow me to elect the board members, so I was the only one on the board. So I had no control whatsoever. They elected me Chairman of the Board, but I didn’t have a vote, I had one vote to their five, so I had no control whatsoever of the company.
"Q Now, Mr. Decker, explain to the jury how they could prevent you from having control of the board by allowing you only one vote, how did that take place ?
“A Well, they would not replace the others, would not allow me to replace anybody on the board that I wanted on the board. In other words, anybody who' would come on the board to replace those seven people they elected themselves. SO' it ended up, I guess, they finally had eleven on the board that were friends of *96 theirs, people that were in the company so long, and I was the only one then, so the board controls and runs the show. And, of course, the chairman. They can put a chairman up there but it means nothing if he has nobody there who is going to vote with him.”

Sometime in 1966, Great Southern Investment Corporation made a stock tender to the stockholders and bought enough stock to control Universal Southern Insurance Company.

The strongest documentary evidence submitted by either party was a check for $5,000.00 payable to appellee, on the back of which was typed above the endorsement — “Partial payment 5% brokerage fee for acquisition of 50 thousand Shares of Stock of Universal Southern Life Insurance Company of Alabama, at $2.48 per share.” • Appellee called the bank that issued the checlc and the bank’s attorney advised appellee to change the “5%” to “7%” and endorse it. There is no dispute that the brokerage fee was 7%.

Appellee testified that “The agreement was I would obtain 50,000 shares of Universal Southern stock for Mr. Decker.”

Appellant testified that “My agreement with Mr. Hays was that he was to assist in getting control, enough to control, enough to give us enough votes votes to merge the two companies and through the board, the stock the board owned, and the stock that I purchased, the stock of friends of the board, he thought that this could be handled.”

Appellant’s argued assignments of error, 2, 3, 4 and 5, concern the rulings of the court sustaining objections to questions propounded to appellee in cross examination.

2. “Q What was the agreed book value, estimated book value, of the shares of common stock in Universal Southern Life Insurance Company?
“A Mr. Lowery, I don’t remember—
“THE COURT: Let me ask one question which may solve it.
“BY THE COURT:
“Q Did you have any agreement with him as to what book value would be made for any of the stock?
“A No, sir.
“THE COURT:,All right. Sustain your objection.” ,

This was the second time the question had been asked and objection had been made to it when asked the first time. After the witness had answered that he did not remember, and the court asked a question, the court sustained the original objection. The overruling of an objection to a question is harmless where the witness answers that he does not know or does not remember. Bailey v. City of Mobile, 277 Ala. 111, 167 So.2d 294; Tankersley v. Webb, 263 Ala. 234, 82 So.2d 259. It naturally follows that it is also harmless to sustain an objection to a question after the witness has testified that he does .not know or does not remember.

3. “Q All right, sir. Who are the men that principally manage .that company ? (referring to Great Southern Investment Company).

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Bluebook (online)
209 So. 2d 378, 282 Ala. 93, 1968 Ala. LEXIS 1093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/decker-v-hays-ala-1968.