MILLER v. HOUSTON CITY ST. RY. CO., 69 F. 63

PER CURIAM. The undisputed evidence in the case shows that in October, 1873, William Brady, then president of the Houston City Street-Railway Company, caused to be issued to T. W. House, for his (Brady’

s) account, 180 shares of stock for and on account of cash advanced by him (Brady) in the organization of the company; that thereafter, in 1S74, other matters of account having arisen between Brady and the company, a settlement was had of all the matters involved, and 1,468 shares of stock were issued to William Brady in place of all stock originally issued, and in full settlement of all amounts found to be due.

After such settlement, although the original stock certificates issued in October, 1873, were not surrendered, they were treated as canceled, and thereafter neither William Brady, nor any one else for him, ever attempted to vote, or assert any right or claim under the said certificates, until the plaintiff in error asserted his pretensions resulting in the present suit.

In the summer or fall of 1875, William Brady delivered the original stock certificates, issued as aforesaid in 1873, to the firm of Miller & Co., of New York, who received the same as marginal security in cotton purchases for future delivery, but who are not shown to have paid or advanced any money or other valuable consideration for or on account of the same. The said firm of Miller & Co. asserted no claim under the said certificates until 1884, when the plaintiff in error showed the certificates to the president of the Houston City Street-Railway Company, at the time in New York.

The president then told him that said stock would not be recognized, exhibiting an official list of the stock of the company, which did not embrace any of the stock in controversy. August 25, 1884, the vice president and general manager of the railway company by letter notified Miller & Co. that the stock in question belonged to the canceled files of the company. After tills no effort was made to assert any rights under the stock sued on until July, 1888, when a formal demand was made on the company to transfer the stock on the books of the company to the plaintiff in error, which was refused.

The demand was renewed in October, 1888. and was again refused. Thin suit, which is for damages, was instituted on September 16, 1889. Under this showing it is quite clear that the plaintiff in error, representing the firm of Miller & Co., is in no better position to assert title to the stock in controversy than would be Brady himself; and, as to Brady, it cannot be contended that he liad any claim whatever on the Houston City Street-Railway Company for and on account of the said stock.

As we view tlie case, it would not have been error in the court below to have instructed the jury to find a verdict for the defendant, for no other verdict was permissible under the issues and evidence. It follows that none of the errors assigned in this court, if otherwise well taken, were prejudicial to the defendant in error, and the judgment of the circuit court is affirmed.