62 P. 76 | Cal. | 1900
In this case the court below sustained a demurrer to the complaint, without leave to amend, and dismissed the case. Plaintiff appealed from the judgment of dismissal.
The complaint alleges, in substance, that in or about the month of January, 1883, the plaintiff was, and ever since has been, uneducated, and of a credulous, confiding disposition; that one John Dunn and the defendants Evans and Rodda were acute business men, friends among themselves, and the intimate friends of the plaintiff; that in or about said month last aforesaid the defendants last named and said John Dunn entered into a conspiracy among themselves to cheat and defraud plaintiff, and that in pursuance of said conspiracy they induced him by false and fraudulent representations to subscribe for stock, and put between four and five thousand dollars into a corporation named the San Francisco Fuse Manufacturing Company, which they had formed for the express purpose of receiving the plaintiff’s said money, and-with the view of subsequently cheating him out of it and acquiring it to their own use; that in 1884, in pursuance of their said conspiracy, the said John Dunn and said defendants Evans and Rodda, being in control of the said corporation, the San Francisco Fuse Manufacturing Company, fraudulently conferred upon themselves salaries ranging from fifty to a hundred dollars per month, and the following year increased the same to from one hundred to one hundred and fifty dollars per month; that the said corporation prospered to such an extent that on the fifth day of September, 1888, it had on hand and under the control of the said John Dunn and said defendants not less than nine or ten thousand dollars in gold coin, together with other property of the value of ten thousand dollars, and was out of debt, except a few hundred dollars; that on the last-mentioned date, in furtherance of the said aforesaid conspiracy, and that they might fraudulently acquire the shares of stock owned by plaintiff in said corporation, the said
There are some other slight differences between the allegations of the complaint in said action begun in 1889 and the allegations of the complaint in the present action hereinbefore set forth, but the general scope and purpose of the said action begun in 1889 are covered by the complaint in the present case. Besides a prayer for general relief, the said complaint filed in 1889 prayed for judgment against said John Dunn, Rodda and Evans for $3,450 and interest, and that the sale of the property of the said corporation made December 10, 1888, be decreed to be void and of no effect. It also appears from the exhibits attached to and made part of the complaint herein that the complaint in the said action of 1889 was duly verified by the oath of the plaintiff Thomas Marks; that an answer to said complaint was filed, and thereafter a stipulation was entered into between the parties to that action to the effect that their differences had been adjusted and settled, and the case might be dismissed and discontinued so far as the plaintiff Marks was concerned. This stipulation was signed by said Marks and his attorneys in that action, and the complaint herein alleges that the suit was dismissed in pursuance of said stipulation, and a similar one
The foregoing summary, though not containing all of the complaint, is sufficient to illustrate the point upon which the case seems to turn.
The demurrer to the complaint states numerous grounds, and among them we find the following: “That the complaint
As to the alleged frauds and injuries from which plaintiff suffered prior to being sold out of the corporation, some of which are alleged to have been discovered even as late as within a year and a half before the commencement of this action, the knowledge which plaintiff confessed to in 1889 was sufficient to put him upon inquiry as to those alleged frauds and injuries. There is nothing in the complaint to show the exercise of any diligence, either by himself or through the legal advisers which he had in the suit of 1889, to discover to what extent he had been defrauded. It does not appear that defendants tried in any way to conceal the affairs of the corporation. While -plaintiff pleads want of information on many subjects, he says little or nothing as to any misrepresentations or concealment on the part of defendants. It does not even appear that access to the books of the corporation was denied to plaintiff, except just previous to the commencement of the present suit; nor does it appear that plaintiff or the attorneys who represented him in the suit of 1889 ever sought to inspect these books, or in any other way ascertain what the corporation was doing. In such a case as this, where he has once discovered enough to put him upon his guard, plaintiff is deemed to have had notice of everything that he might have discovered by the use of reasonable diligence. In Truett v. Onderdonk, 120 Cal. 581, 53 Pac. 26— opinion by Van Fleet, J.—it is said: “Equity abhors a stale claim, and it was incumbent upon plaintiff to show facts excusing his long delay in asserting the fraud. It is not enough to assert merely that the discovery was not sooner made. It must appear that it could not have been made by the exercise of reasonable diligence. And all that reasonable diligence would have disclosed plaintiff is presumed to have known, means of knowledge in such a case being the equivalent of the knowledge which it would have produced.” To the same effect are the cases of Robertson v. Burrell, 110 Cal. 567, 42 Pac. 1086, and Lady Washington Consolidated Co. v. Wood, 113 Cal. 482, 45 Pac. 809.
The demurrer having been properly sustained on the grounds of laches and the statute of limitations, it is unnecessary to notice the other grounds. The complaint was verified, and it would seem from an examination of it that it
We concur: Chipman, C.; Smith, C.
For the reasons given in the foregoing opinion the judgment is affirmed.