
    No. 5616.
    GEORGE H. SMITH, RECEIVER, vs. HENRY A. TESTARD.
    Syllabus.
    Issues of fact only are involved herein.
    Appealed from the Civil District Court for the Parish of Orleans, Division “ E, ” No. 98,351. Hon. G-. H. Theard, Judge.
    Saxon, Richardson & Soule, for plaintiff and appellant.
    Chas. Louque, for defendant and appellee.
   His Honor

HORACE L. DUPOUR,

-rendered the opinion and decree of the Court a,s follows:

The receiver of the Vossburg Mineral Springs Co., an insolvent corporation, sued the defendant to recover $400 amount claimed to be due as balance of price of stock purchased by the latter.

. It is alleged that in .1902 the corporation • employed Claude Smith, a local stock broker, to sell some of its treasury stock of the par value of $100, that he sold five shares to the defendant who paid $20% on account.

Defendant denies that he ever subscribed to stock and avers that he bought for $100, from Smith five shares of full paid stock and paid the amount on the faith of the recital in the certificate of stock that it was full paid.

There is no dispute about the law and the question is admittedly one of fact.

The plaintiff’s contention is that “defendant, whether he signed or did not sign a subscription list for the stock of the Vossburg Co., is liable for the unpaid balance due on the stock issued him, for the reason that he knew he was buying treasury stock, and his acceptance of the stock made kirn a stockholder in the company, the same as if lie had previously subscribed to its stock.

Opinion and decree, November 11th, 1912.

Only two witnesses were heard in the case, which was heard ten years after the transaction was entered into, and neither is very positive as to what took place, the testimony of both being replete with “I think” and “to the best of my belief. ’ ’

According to Smith, he was employed by the company to sell the treasury stock and he thinks that defendant signed a subscription list for five shares at $20 per' share of a par value,of $100, and that it was offered as treasury stock. The list was not found among the papers 'of the company.

■ -Testard -says that for years back he had been buying stock from Smith as a broker, and that he bought five shares of the Vossburg Co., full paid and non-assessable for $20 a share. He denied having signed any subscription list and has no recollection of being told that the stock was treasury stock.

He knew no -one but -Smith in the matter and thought he was buying through him as his regular broker on the Exchange, just as he had bought other full paid stock listed below par.

The trial Judge evidently concluded that the testimony of-the broker, given so many years after the occurrence, was not sufficiently clear and positive to outweigh the defendant’s, and hold him liable;

We think he did not err.

Judgment affirmed. -  