108 P. 145 | Cal. Ct. App. | 1910
The complaint filed by plaintiff sets out a written instrument in the words and figures following:
"Sept. 1st, 1906.
"George J. Birkel Company, "Los Angeles, Calif.
"For value received, we herewith hand you twenty-five (25) shares of Mount Washington Company stock certificates No. 60, 61, 64, at a total value of twenty-five hundred ($2500) dollars.
"We agree, at the expiration of one (1) year from date, on demand, to purchase said stock for twenty-five hundred dollars, with interest added at six per cent. per annum from date.
"(Signed) JNO. HOWZE. "ROBERT MARSH. "J. E. MARSH."
It is averred that on August 6, 1907, plaintiff gave notice to defendants that on September 1, 1907, it would demand of defendants that they pay the sum of $2,500, with interest, for said stock under said agreement; that accordingly the *647 certificates mentioned evidencing the shares specified were duly indorsed by plaintiff so as to assign and transfer the same to defendants and a tender made and a demand of payment; that defendants refused to accept or pay for said shares of stock. Defendants, in their answer, admit the execution of the instrument, but deny the other allegations of the complaint, and allege further that the contract attempted to be set forth in plaintiff's complaint is void, inasmuch as it is repugnant to the provisions of section 26 of article IV of the constitution of the state of California.
Upon the trial of the action the court found in favor of plaintiff upon all of the issues, and rendered judgment accordingly; defendants appeal therefrom upon the judgment-roll.
The only question, therefore, presented upon this appeal is as to the character of the written instrument, the basis of the action. The constitutional provision referred to is: "All contracts for the sale of shares of the capital stock of any corporation or association, on margin, or to be delivered at a future day, shall be void." It is appellants' contention that this instrument upon its face is one indicating a gambling transaction. With this we do not agree. This instrument, under section
Viewing this case, therefore, from either standpoint presented, we think the judgment of the trial court was warranted and the same should be affirmed; and it is so ordered.
Shaw, J., and Taggart, J., concurred.