O'Dea v. Hollywood Cemetery Assoc.

I dissent. The evidence shows that Samuelson, at the beginning of his cemetery enterprise was the owner of all the land now belonging to the new corporation, apparently free of all encumbrances, and that through the manipulations of the other parties concerned in the enterprise with him, and without the expenditure of any substantial sum of money or the contribution of any considerable effort or property by any other person, at the close of the proceedings, Samuelson stood as a subscriber for something over 7600 shares of stock in the new corporation upon which subscription he owed the new corporation the full par value of seventy-six thousand dollars, and that he was not the owner of any other property, while the other parties who contributed nothing and did nothing substantial, were the owners of all the residue of the stock in the new corporation as full paid stock on which they owed the corporation nothing, their stock being about two thirds of the total capital stock of the new corporation. It also appears, that the new corporation was then the owner of the Samuelson land and of the entire capital stock of the old corporation and by reason of such ownership of said stock was entitled to the entire beneficial interest in the forty thousand dollars of bonds which the new corporation had issued to the old corporation. In short, Samuelson went in with property in his own right of the value of something like fifty thousand dollars and came out with no property and owing seventy-six thousand dollars, and all of this was brought about by mere manipulation of documents and papers without anything of value having passed to him. Such a thing is to me absolutely incredible and some other explanation of the transactions must be possible. I think it is found in the proposition *Page 74 that when, after the issue of practically all the stock of the new corporation to Samuelson, the 7600 shares represented by certificate 8 and the 12,250 shares represented by certificate number 9, and when he thereupon made the distribution of the stock in accordance with the agreement, it was fully understood by all concerned that all the stock was to be considered as full paid, as in fact it was by virtue of the original agreement. While there may be some evidence of a somewhat evasive character that is contrary to this conclusion, there is really no substantial evidence against it.

Rehearing denied.

Beatty, C.J., dissented from the order denying a rehearing, and filed the following opinion on the thirteenth day of August, 1908: —