implied agency agreement between plaintiff and defendant.
But even if there had been an agency relationship subsequent to August 3, 1959, there was no evidence that defendant failed in its duty to the plaintiff. On September 1, 1959, plaintiff and three other physicians brought suit in the Circuit Court of Arlington County, Virginia, against the Hospital Corporation and the then president and secretary of that corporation. In that action plaintiff and the three other physicians sought to require the Hospital and its officers to issue certificates of stock in accordance with their purchase order of August, 1959. A petition to intervene was filed in that action by other parties who claimed they had a prior right to the 6220 shares of stock under a subscription agreement entered into between them and the Hospital. The Virginia Circuit Court dismissed the action brought by the plaintiff and the three other physicians. Plaintiff appealed that decision to the Supreme Court of Virginia which, in January, 1961, affirmed the Circuit Court.
At approximately the same time that the Virginia action was instituted, the $ 62,200 purchase price of the shares was placed in escrow by defendant in the First National Bank of Arlington pending the outcome of the Virginia litigation. This was done at the request of the plaintiff and the other physicians, who at no time have requested defendant to return the money to them.
While the Virginia litigation was pending, discussions were had by plaintiff and others with representatives of the Hospital with respect to obtaining the 6220 shares of stock. In April, 1960, counsel for the Hospital advised counsel for plaintiff that the Hospital would issue 5850 shares of its stock to plaintiff. This letter resulted in a meeting attended by plaintiff, his counsel, president of defendant, and two or three of the other physicians. While the evidence is conflicting as to the reason for not accepting the Hospital's offer of 5850 shares, plaintiff testified that he did not direct defendant to take up that number of shares. And plaintiff independent of defendant did not accept the 5850 shares. Rather counsel for plaintiff replied to counsel for Hospital suggesting a meeting of counsel, plaintiff and officers of the Hospital for the purpose of working out an amicable settlement. At that time defendant's president understood that defendant would be advised by plaintiff's counsel as to what action should be taken concerning the acquisition of the shares of stock.
Thereafter Riggs National Bank advised defendant that as of the close of business on April 18, 1960, it would have available 6220 shares of Hospital stock for issuance in accordance with the letter of instructions given to the Riggs National Bank in August, 1959. Upon receipt of that letter, an attorney for defendant inquired of the Bank and also of the president of the Hospital as to the transfer agent's authority to issue the 6220 shares of stock to the plaintiff and the other physicians. Copies of those letters requesting such information were sent to counsel for the plaintiff. The information sought by the attorney for the defendant was never furnished by either the Bank or the Hospital. However, plaintiff was notified by the Hospital that at the close of business on April 25, 1960, the transfer books of the corporation would be closed and that unless plaintiff paid for and took up the 6220 shares of stock by that time the offer to make the shares available would be withdrawn. While both plaintiff and his counsel saw the notice from the Hospital on April 25 prior to the close of business, defendant was never made aware of that information by plaintiff, his counsel, or anyone else until some date subsequent to April 25. Plaintiff did not pay the purchase price within the time provided and he has not received the shares of stock.
The attorney for defendant was justified in seeking advice with respect to the authorization for the transfer of the 6220 shares of stock and the payment of the $ 62,200 for the same. That money was being held in escrow pending the outcome of the Virginia litigation. In April, 1960 the litigation was still pending. In the litigation intervenors had asserted a prior right to the 6220 shares of stock. If defendant had been the agent of plaintiff at the time, its attorney was exercising the due care that would be expected of the defendant under the circumstances. Plaintiff would have no valid claim against defendant even if it had been the agent of plaintiff subsequent to August 3, 1959.
In view of the disposition of this case, consideration need not be and has not been given to defendant's contentions that plaintiff is not the real party in interest and that the Arlington, Virginia, litigation was conclusive of the rights asserted here by plaintiff.
Judgment for defendant. This memorandum is to serve as the findings of fact and conclusions of law of the Court.
Counsel for defendant will present appropriate order.
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