Opinion
6 Div. 519.
May 17, 1917.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
G. W. Yancey, of Birmingham, for appellant. Goodwyn Ross, of Bessemer, for appellee.
Aside from other considerations which might suffice to justify the action of the trial court in granting a new trial on plaintiff's (appellee's) motion, the court holds there was no error for the reason that there was no formal or conclusive evidence, either on defendant's books or elsewhere; i. e., there was no authenticated certificate of stock, to show that plaintiff was a stockholder in defendant corporation, while there was evidence to the effect that defendant had denied plaintiff's ownership of stock, contending that an agent had received the money with which plaintiff intended to pay for stock and had embezzled the same to plaintiff's loss. It cannot be said in this state of the evidence, as matter of law on undisputed facts, that plaintiff had not the right to recover the money he had paid to defendant's agent for stock he did not get; and, if any act of rescission on his part was necessary, the bringing of the suit served that purpose. Hence it is that the court erred in giving the general affirmative charge for defendant at the trial, and did the proper thing when it afterwards set aside the judgment and granted a new trial.
Affirmed.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.