Opinion
Jan. 7, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Ross & O'Brien, P.C., Edward J. O'Brien II, Colorado Springs, for plaintiff-appellee.
Richard Ranson, Colorado Springs, for defendant-appellant.
VanCISE, Judge.
Davis commenced this action for commissions owed to him for sales made while he was vice president and sales manager of the real estate business of defendant Apostolas. In a trial to the court, judgment was entered in favor of Davis less a smaller amount owed back to Apostolas. Defendant's counterclaim for breach of contract was dismissed. None of these judgments is at issue on this appeal.
A judgment was entered against Apostolas on another counterclaim in which he had sought an amount allegedly advanced by him to his corporation for Davis's purchase of 5,000 shares of stock therein and allegedly due and owing from Davis to him. This is the only judgment being appealed. We affirm.
The trial court found as facts: That, when Davis commenced employment, Apostolas agreed to transfer to Davis, by gift, 5,000 shares of stock in Apostolas & Co.; that this transfer was made by the issuance of a certificate to Davis for 10,000 shares, 5,000 by purchase through the application of a commission earned by Davis on a sale of property and 5,000 by gift from Apostolas; that Apostolas intended to make the gift; and that the shares of stock are pledged as security for a bank loan to Davis. The testimony supports these findings, and there is no evidence to the contrary. They will, therefore, not be disturbed on review. Raines v. Paxson, Colo.App., 527 P.2d 902.
The gist of Apostolas's appeal is his contention that Davis did not present evidence sufficient to establish a valid gift of the 5,000 shares of stock, and that therefore, we should hold that no gift took place. As set forth above, the trial court found that there was a gift, and that finding is binding on us. However, insofar as pertains to this appeal it is of no consequence whether the stock came to Davis as a gift or as a bonus or even as a purchase from the corporation. The only pertinent issue here is the validity of Apostolas's counterclaim for money allegedly owing to him. As to this, he had the burden of proof. There was no evidence offered to show that anything had been paid to the corporation for its stock, that Apostolas advanced to it any part of the alleged purchase price, or that there was any agreement that Davis would pay anyone for the stock. The court properly held against Apostolas on the counterclaim.
Judgment affirmed.
ENOCH and BERMAN, JJ., concur.