33 Cal. 25 | Cal. | 1867
Lead Opinion
The defendant was sought to be charged as a stockholder in the Hamilton Quicksilver Company, a corporation organized under the laws of this State, (Hittell’s Gen. Laws, 932,) for his proportion, as alleged, of the debt due the plaintiff from the company. The action was upon two promissory notes made by the corporation—the one on the 30th of April, 1863, and the other on tire first of May, in the same year. Each of said notes was made payable six months after date, with interest at two per cent per month. The defendant traversed several of the material allegations of the complaint. He denied that he was ever a member of, or a stockholder in, said corporation. He denied that he was indebted to the plaintiff in any sum whatever on account of said corporation or otherwise. And he affirmatively alleged that said notes were given for and in consideration of debts which accrued when the defendant was in nowise connected with the company, as agent or otherwise.
The issue joined was tried before the Court without a jury, and the finding and judgment was in plaintiff’s favor. A motion for a new trial was afterwards made, which was denied, and then the defendant appealed.
There are two statements in the transcript certified to tins Court—that is to say, a statement on motion for a new trial, and a statement on appeal. The last was not served and filed within the time prescribed by law, and consequently must he laid out of view.
From the statement on motion for a new trial it appears that the plaintiff offered in evidence a hook called the “ stock hook,” in which, the Secretary of the company testified, a statement of the affairs and transactions of the corporation was kept. The defendant objected to the admission of this
The sixteenth section of the Act to provide for the formation of corporations and for other purposes, passed in 1853, (Laws 1853, p. 87,) as amended in 1863, (Laws 1863, p. 736,) provides that' every stockholder shall be individually and personally liable for his proportion of all the debts and liabilities of the company contracted or incurred during the time that he was a stockholder. The answer, as we have seen, traversed the plaintiff’s allegation that defendant was a stockholder in the corporation at the time the company contracted the debt or incurred the liability for a portion of which the defendant was sought to be charged. An issue being joined on this point, the burden was on the plaintiff to prove the truth of his averment before he could recover. He attempted to do tins by the books which he introduced in evidence, supposing, it would seem, that the books were competent evidence of the fact in issue. The eighteenth section of the Act of 1853 authorized and required the Trustees of the corporation in question to cause a book to be kept containing the names of all stockholders, and the number of shares held by them respectively, and the time when they respectively became the owners of such shares; and-then provided “ that
But if it were conceded that the books were prima facie., or, in the language of the statute, presumptive evidence, of the facts therein stated, then the result would be the same; because the evidence shows that the defendant never became a stockholder in the company. That he did, is not to be intended iii support of the finding of the Court, upon the hypothesis that the books introduced in evidence, but which have not been copied in the statement, established facts authorizing such finding. We are of opinion that there is enough in the statement to show what the books contained relating to the questions in issue, and that the entries therein, by aid of which the defendant was held to be a stockholder and liable as such, were unauthorized, and consequently their character as evidence was impeached and destroyed. The engrossed statement contains the following passage: “ On the hearing of this motion for a new trial plaintiff will refer to and read the following papers and evidence, to wit: The stock book of company; the transfer book of company; the bond of Thomas Earl; and he asks that the same may be made a part of this statement, together with the Court Reporter’s notes of the evidence and proceedings in the case.” It does not appear why the books so referred to by the plaintiff were not in fact brought into the statement. It may be
The books, it must be observed, are only presumptive evidence of the facts therein stated in the cases in which they are competent evidence in the first instance. If only presumptive evidence in such cases, the presumption raised might be overthrown by other competent evidence. At most, the books were only jiresumptive evidence that defendant became a stockholder in the company. This evidence was overcome by the testimony of the plaintiff’s witnesses, to the effect that he never accepted but refused to accept any of the stock of the company, and never, in fact, became a stockholder in the company. The witnesses called by the defendant also testified to facts showing that defendant did not become a stockholder in the company. And there is no pretence or reason for pretence that the witnesses did not testify truly. So that, assuming that the books contained a statement showing that the defendant became and was a stockholder, as alleged in. the complaint, such evidence, if competent against the defendant, was effectually contradicted and rebutted.
There was no cause of action established against the defendant, and therefore the judgment must be and is hereby reversed and a new trial ordered.
Concurrence Opinion
I concur in the judgment of reversal on the last ground discussed by Mr. Chief Justice Currey.
Dissenting Opinion
As to the points specified in the statement relating to insufficiency of evidence to support the findings, it is impossible to tell from the statement what the evidence proved. The statement itself afiirmatively shows that evidence hearing upon the points specified has been omitted in the statement and transcript, and that such omitted evidence is absolutely necessary to render that contained in the transcript intelligible. Also, that the omitted evidence constitutes a part of the case upon which the Court below based its action in denying a new trial. All presumptions are in favor of the correct action of the Court, and the appellant must affirmatively show error to justify this Court in reversing the orders and judgments of the District Court. I cannot undertake to say, from the mutilated case and loose jumble of evidence appearing in the statement on motion for new trial, as presented in the transcript, that the evidence was insufficient to support the findings. I find no available error, and think the judgment should he affirmed.
Sanderson, J., also dissenting:
I think the judgment should be affirmed.