173 P. 1000 | Cal. | 1918
This is an appeal from a judgment in favor of plaintiff and also from an order refusing to set aside said judgment and enter a judgment for the defendant. As to this latter appeal it is unnecessary to consider it separately, since the same matters presented thereon arise upon the appeal from the judgment. (Hayne on New Trial and Appeal, sec. 199.) The action was one brought by the plaintiff as a judgment creditor of the Oakland-McKittrick Oil Company, a corporation, and also as the assignee of two other judgments against said corporation, and is one in which the plaintiff seeks to recover from the defendant an amount sufficient to satisfy these several judgments for which the said defendant is alleged to be liable by virtue of the fact that the defendant was, at the time the indebtedness represented by said judgments arose, a stockholder of the said Oakland-McKittrick Oil Company, holding twenty-five thousand shares of its capital stock of the par value of one dollar per share. The complaint proceeds to allege upon information and belief, "that the said defendant paid no sum of money or other thing of value, to said Oakland-McKittrick Oil Company, or to any other person, or at all, for said twenty-five thousand shares, or for any part thereof, and that all of said twenty-five thousand shares were issued directly to the said defendant by said Oakland-McKittrick Oil Company without the said defendant paying or the said Oakland-McKittrick Oil Company receiving any consideration therefor whatever. That said defendant is still the owner and holder of said twenty-five thousand shares, and has never paid any consideration for the same, and that there is now due and owing from the said defendant to said Oakland-McKittrick Oil Company the full sum of twenty-five thousand dollars, the par value as aforesaid of said stock, for the same." The complaint prays for the application of a sufficient portion of all defendant's alleged unpaid subscription to pay his said judgments and for general relief. To this complaint the defendant presented a demurrer, which the court overruled, whereupon the defendant answered the several counts of the complaint, denying that he did not pay full consideration for said stock, and averring that said stock at the time of its transfer to him was fully paid-up stock of said corporation and as a further and separate defense alleged that the said defendant received said *428 stock in the course of a certain transaction in which he had loaned to the said Oakland-McKittrick Oil Company the sum of three thousand five hundred dollars upon its promissory note secured by a chattel mortgage and assignment of lease, and that as part of the consideration for said loan, and as a bonus therefor, the said corporation had issued to the defendant and he had received the aforesaid shares of the fully paid-up stock of the corporation; that said stock at no time had any value whatsoever, and was finally sold for delinquent assessments levied thereon. Upon the trial of the cause the court made the following finding of fact: "That on the thirtieth day of November, 1910, the defendant herein became the owner of twenty-five thousand shares of the capital stock of said Oakland-McKittrick Oil Company, of the par value of twenty-five thousand dollars; that said defendant paid no sum of money or other thing of value to said Oakland-McKittrick Oil Company, or to any other person, or at all., for said twenty-five thousand shares, or for any part thereof, and that all of said twenty-five thousand shares were issued directly to the said defendant by said Oakland-McKittrick Oil Company without the said defendant paying or the said Oakland-McKittrick Oil Company receiving any consideration therefor whatever; that said twenty-five thousand shares were issued by said Oakland-McKittrick Oil Company to said defendant as a bonus to said defendant for making a loan of three thousand five hundred dollars to said Oakland-McKittrick Oil Company, to secure which loan said Oakland-McKittrick Oil Company gave to said defendant a chattel mortgage upon its property and assets; that said defendant is still the owner and holder of said twenty-five thousand shares of stock, and has never paid any consideration for the same, and that there is now due and owing from said defendant to said Oakland-McKittrick Oil Company the full sum of twenty-five thousand dollars, the par value of said stock, for the same." The court made no finding as to whether said stock was ever of any value, nor did it find what, if any, was the value of the security pledged to the defendant for his said loan. As a conclusion of law, the court found that the defendant was indebted to the Oakland-McKittrick Oil Company in the sum of twenty-five thousand dollars, covering the entire par value of said stock, and hence was liable to the *429 plaintiff for the sum of $6,772.40, the full amount of its said claim, for which judgment was accordingly entered.
The first question presented by the appellant upon this appeal is that his demurrer to the complaint should have been sustained.
This point we deem to be well taken. The unequivocal language of the plaintiff's complaint above quoted is susceptible of no other construction consistent with the rules of pleading than that no consideration was either paid or received for or on account of the transfer of the stock in question to the defendant. If this be so, the case falls squarely within the reasoning and authority of Kellerman v. Maier,
Judgment reversed.
Shaw, J., Wilbur, J., Melvin, J., Sloss, J., and Angellotti, C. J., concurred. *435