37 S.E. 155 | N.C. | 1900
The complaint alleges that plaintiff is the owner of two shares of stock in defendant company; that she lost the certificate therefor about 1874; that after the most diligent search she has not been able to find it, and that she has not sold, *76 transferred, or assigned said certificate of stock; that the defendant has all along continued to pay her dividends thereon, — and prays judgment that the defendant issue to her a new certificate for the same. The answer admits that the plaintiff is "the owner and holder of two shares of stock in defendant corporation;" that her name appears as such on the stock book, and that all dividends thereon down to the present time have (112) been paid to her without objection or exception by anyone whatever; and that defendant has at all times recognized plaintiff as holder and owner of said two shares, — but denies any knowledge or information sufficient to form a belief as to loss of the certificate, and demands strict proof thereof. For further defense, the answer avers that the defendant corporation having been incorporated prior to the Constitution of 1868, and its charter and by-laws containing no authority to reissue certificates, it can not be compelled to do so; and, further, that before it is required to issue a duplicate certificate it is entitled to have the plaintiff execute a bond of indemnity, and that the reissued certificate should be deposited with the treasurer of defendant, as an escrow, for five years, before delivery to plaintiff both "as provided by chapter 265, Laws 1885"; and pleads further, also, that no tender of indemnity bond was made by plaintiff before bringing the action. The jury, upon issue submitted, found that the certificate of stock had been lost.
The principal exceptions by defendant call in question the power of the Legislature to pass the Laws 1885, c. 265, so far as the defendant company is concerned. But that point was decided against defendant when the case was here before (Hendon v. R. R.,
The judgment given in this case follows the provisions of chapter 265, Laws 1885, whose benefits are invoked in the (113) answer, and is an exact copy of the former judgment, which was approved on the former appeal. The defendant having denied the plaintiff's right to the reissue of the certificate asked for, it is immaterial that no tender of bond was made before bringing the action. Cui bono? McQueen v. Smith,
The only other point presented by defendant is that the prayer of the complaint is for the reissue of a certificate of stock in lieu of that lost, and the judgment is for issue of a duplicate certificate upon giving the indemnity bond, and filing with defendant's treasurer such duplicate certificate, as an escrow, for five years, as required by Laws 1885, c. 265. For many reasons, this objection is without merit: (1) The objection was not made at the trial, when, if made, the complaint could have been amended, if necessary. It can not be made for the first time here. Rule 27 of this Court, and cases cited thereunder; Clark's Code (3 Ed.), p. 920; and also Id., p. 777. (2) The plaintiff is entitled to any relief which the law will grant, upon the facts alleged in her complaint, if proved, whether the appropriate remedy is demanded in the prayer for relief or not. Clark's Code (3 Ed.), pp. 200, 201. (3) On appeal the case will be treated in the same aspect it presented on the trial below. Allen v. R. R.,
No error.
Cited: Mfg. Co. v. Blythe, post, 327; Setzer v. Setzer,