Opinion
19348
January 11, 1972.
Messrs. Whaley, McCutchen, Blanton Richardson, of Columbia, for Appellant, cite: As to the non existence of a subscription agreement for the purchase of stock in the Appellant Corporation between the Appellant Corporation and the Respondent: 4 Fletcher Cyclopedia Corporations (1965) Sec. 1363, Sec. 1362; 18 Am. Jur.2d Corporations Sec. 292; Chapter 55 Sec. 55-43 (b) of the North Carolina Business Corporation Act; Sec. 12-15.5 (b) of the South Carolina Code, 1970; 218 S.C. 47, 53, 61 S.E.2d 387.
W. Ray Berry, Esq., of Fulmer, Berry Alford, Columbia, for Respondent, cites: As to the agreement between the parties not being in this appeal subject to the provisions of Section 12-15.15 (b) of the 1970 Supplement of the 1962 Code of Laws for South Carolina; and as to competent evidence to support the Trial Judge's findings of fact: Section 10-652 of the 1962 Code of Laws for South Carolina; 41 Am. Jur., Pleadings, Sec. 59; 58 S.C. 30, 36 S.E.2d 2; 172 S.E.2d 311; 170 S.E.2d 304; 3 South Carolina Digest, Appeal and Error, Sec. 169; 233 S.C. 210, 104 S.E.2d 384; 18 Am. Jur.2d Corporations, Sec. 288; 252 S.C. 530, 167 S.E.2d 436; 3 South Carolina Digest, Appeal and Error, Sec. 1008 (1).
January 11, 1972.
This action for damages for breach of an alleged stock subscription contract, whereby the defendant, a North Carolina corporation, was obligated to sell eighty shares of its capital stock to plaintiff for the sum of $8,000.00, was submitted to the court on the pleadings, stipulations of the parties, correspondence between them and certain exhibits. The court found that there was a valid contract between the parties for the sale of the stock, that plaintiff had tendered the purchase price in compliance with the terms of the agreement, but that the defendant had refused to transfer the stock as it was obligated to do. Plaintiff's damages were assessed at $9,000.00, and judgment, after an adjustment for interest, was awarded accordingly.
On its appeal from the judgment of the circuit court, the defendant first urges that plaintiff's failure to prove a written subscription agreement was fatal to his case under the statutory law of North Carolina, which like that of South Carolina, provides that no such agreement is valid unless in writing and signed by the subscriber. Any failure by plaintiff to prove compliance with legal requirements in this respect is not available to defendant on this appeal, because the lack of a written subscription was not pled as a defense, nor was it otherwise presented to or passed upon by the circuit court. 3 West's South Carolina Digest, Appeal and Error, Key No. 169 (1952).
Defendant next urges that the evidence merely established a personal contract by its president to sell some of his own stock to plaintiff, and that the court erred in holding that the contract bound the corporation. While this is one view of which the evidence is susceptible, it is not the only reasonable inference therefrom. The contrary conclusion of the circuit judge has ample support in the evidence, particularly in a letter written to plaintiff by the president of the corporation, and signed by him as president, reciting the terms of the agreement. Since in this law case it is not within our province to weigh the evidence, to review it would serve no useful purpose.
The only remaining exceptions challenge the sufficiency of plaintiff's tender of the purchase price. These have been abandoned by failure to argue them in the brief.
Affirmed.
MOSS, C.J., and LEWIS, BUSSEY and LITTLEJOHN, JJ., concur.