111 Cal. 523 | Cal. | 1896
The “Consolidated National Bank,” organized under the laws of Congress, failed on June 21»
The main contentions of appellant are that the complaint is insufficient, and that the court erred in instructing the jury to find for plaintiff.
1. The contention that the complaint does not contain a sufficient averment of nonpayment cannot be maintained. It is averred that “the defendant, though demanded, has failed and refused to pay said assessment or any part thereof”; and this is a sufficient averment of nonpayment at the time of the commencement of the action. There was only a general demurrer.
The law provides that the comptroller may enforce the individual liability of the stockholders if necessary to pay the debts of the bank; and the main contention
-The point made by appellant, that the court erred in striking out part of his answer, is not tenable. The part stricken out was an averment that the comptroller in making the assessment acted without due information of the assets and liabilities of the bank; that such assets, independent of the liability of the stockholders, were sufficient to pay all the liabilities except one hundred
2. We do not think that the judgment should be reversed because the court instructed the jury to find for the plaintiff. Of course, such an instruction could not be upheld where there was conflicting evidence as to material facts which the jury had the right to pass on; but where there is no substantial conflict of evidence as to the facts determinative of the case, or such facts are admitted, there the judgment,will not be reversed for such an instruction—although the practice is hazardous, and can be sanctioned only in the clearest cases.
In the case at bar the one hundred shares in question were originally represented by certificate No. 94, held by Mrs. Howard, wife of Bryant Howard, president of said bank. The evidence shows that this stock was transferred to the appellant on June 30, 1891. Appellant contends that there was a conflict of evidence on this point. We do not see anything in the record as to this matter which could properly be called a conflict; but if there was, it was immaterial. As between the hank, or its creditors, and the appellant, there was no actual legal transfer of the stock until July 2,1892; and
The real alleged grievance of appellant is that he was
Under the foregoing views, we see no disputed material facts for the jury to pass on; and, therefore, we see no warrant for reversing the judgment on account of the said instruction complained of. And under these views the numerous exceptions taken by appellant to rulings of the court on the admissibility of evidence, refusals to give certain instructions asked, etc., are immaterial, and need not he specially noticed.
The judgment and order denying a new trial are affirmed.
Temple, J., and Henshaw, J., concurred.
Hearing in Bank denied.