16 Wash. 647 | Wash. | 1897
The opinion of the court was delivered by
This was an action on a promissory note, brought by the receiver of the Farmers’ Insurance Company against the appellants. The complaint
The appellants have been industrious in citing cases to sustain their contentions of error in this case, but it seems to us that the questions at issue here have been settled by decisions of this court. In the first place, we think that this complaint, with the historical part eliminated, is a simple action on a promissory note, and that many of the objections raised by the answer could not be pleaded. The complaint, it is true, recites the fact of the ownership of this stock on the part of the appellants, and the calls on the part of the respondent, which finally resulted in the execution and delivery of the note sued upon; but this is in- reality the recitation of facts which culminated in the execution of the contract, and it is claimed by the respondent that the recitals were made simply for the purpose of showing the community relations existing between Dennis Mullin and Margaret Mullin, so that the case might be brought within the rule announced by this court in Horton v. Donohoe-Kelly Banking Co., 15 Wash 399 (46 Pac 409), and Gund v. Parke, 15 Wash. 393 (46 Pac. 408). But even considering the complaint from the appellants’ standpoint, the objection, that the complaint did not state facts sufficient to constitute a cause of action, was waived
In Mosher v. Bruhn, 15 Wash. 332 (46 Pac. 397), upon this proposition, this court said:
“ Counsel for the respondents insist that the appellant cannot be heard to urge this objection, claiming that it waived its demurrer in the lower court by neglecting to bring it on for hearing and by putting in an answer and proceeding to trial upon the merits. We think this contention must be sustained. The record fails to show that the attention of the lower court was ever called to the demurrer. It does not show that the appellant sought or obtained any ruling from the lower court thereon, but does show that it proceeded to litigate with the respondents and the firm of Bruhn & Henry, upon the merits, in which litigation it was unsuccessful. Appellant insists that the Code (§ 193), permits it to raise the point here for the first time. The answer is that it raised it below by demurring, and abandoned the point when it abandoned its demurrer.”
This is a stronger case in favor of the doctrine announced, for the demurrer was affirmatively waived, and the respondent was deprived of the right of any amendment which he might have made if the contention had been decided against him.
Aside from this, we think that the complaint was sufficient under the rule announced by this court in McKay v. Elwood, 12 Wash. 579 (41 Pac. 919), and McKenzie v. Oregon Improvement Co., 5 Wash. 409 (31 Pac. 748), and that the objections urged against the complaint by the appellants should have been taken by answer, and the burden of proof was upon the appellants to establish their affirmative allegations. McKenzie v. Oregon Improvement Co., supra.
An investigation of the record convinces us that the allegation of the answer, that the stock had not
It is urged that the bylaws prohibited any stockholder from acquiring more than fifty shares of stock; but the record shows that this bylaw was not made until after the full capital stock had been subscribed. The subscriptions for the full capital stock it is true were finally completed by the subscriptions of Mrs. Alvord, Mrs. Gardella, Mrs. Holyoke, Mrs. Nancy A. Kincaid, Mrs. Alice E. Kincaid and Mrs. Bowman, and the other subscriptions taken in lieu of the joint note destroyed. The latest of these subscriptions was made July 14, 1890, and the call was not made until August 6, 1890, so that, if the joint subscription note was invalid, the full capital stock was notwithstanding subscribed.
The action of the trustees in transferring a part of their shares to their wives is assailed as fraudulent, by the appellants, but the testimony is fairly conclusive that this transaction, while it may not have been at the instance of the wives, or even with the knowledge of all of them, was afterwards ratified, and that they are responsible for the amount of stock subscribed for them.
So far' as the errors alleged in regard to the instruc- . tions refused are concerned, it is difficult for this court to determine whether or not the court erred, from the fact that the instruction which was actually given does not appear in the record. But, on the
As to the third contention of the appellants, viz., that assuming the legality of the subscriptions, the incorporation and the assessments of the company, the plaintiff has not shown any justification for collecting assessments made- previous to the company’s failure, it appears that this point was not raised in the court below, and, under frequent rulings of this court; it will not be considered here for the first time.
Affirmed.
Scott, C. J., and Anders, Reavis, and Gordon, JJ., concur.