172 P. 615 | Cal. Ct. App. | 1918
The defendant appeals from a judgment entered against him in the sum of $171.40 as a stockholder in Maier Pier Company, a corporation, on account of a contract whereby merchandise was sold to that corporation at the agreed price of $857.04.
There is only a typewritten transcript of the record. The quotations from pleadings and from evidence, as printed in the briefs, are less complete than they should have been. But by piecing together a scrap found in one brief with other scraps found here and there in the other briefs, together with positive admissions of fact by counsel, we find enough, although barely enough, material for a decision on the merits. It is a dangerous practice for attorneys in preparing their briefs to neglect the provisions of section 953c of the Code of Civil Procedure. We have referred to this matter in many recent decisions.
It was alleged in the complaint "that at the time said debts were contracted, the total number of shares of the capital stock of said corporation, Maier Pier Company, issued, subscribed, *532 and outstanding, was 77,941 shares." Without denying this allegation, the defendant denied that at the time mentioned he was a shareholder in the corporation, and alleged that at that time he had no stock therein. Nevertheless the court, in finding No. 6, declared "that at the time said contract was made said defendant Edward R. Maier was the owner of one share of stock, and that the total number of shares of stock subscribed for at that time was five."
If appellant is right in his contention that finding No. 6 is unsupported by any evidence, the judgment must be reversed. Counsel for respondent contend that the pleadings were amended at the trial in such a manner as to eliminate the above-stated allegation as to total number of shares of stock outstanding at the time in question and to substitute an allegation conforming to finding No. 6. It seems to be true, according to a quotation from the transcript as made by them, that the court allowed the parties to amend their pleadings to conform "to the facts and proof in the matter." But the more complete quotation given by counsel for appellant limits the amendment made at the trial to the following: "That the plaintiff amends and alleges the contract to have been made on August 14th, and that the answer is amended to show that the defendant alleges that he had no stock on that date."
Counsel for respondent do not suggest that any proof was made on the subject before us, except that they introduced in evidence the articles of incorporation of Maier Pier Company, executed eight days before the making of the corporation's contract with the plaintiff, with the statement made by counsel that, as shown by those articles, five shares of the stock of the corporation were subscribed, of which the defendant Maier subscribed for one share. They admit, however, that these articles "were not copied into the record by the reporter, but this no doubt was through an oversight on his part." There has been no suggestion of diminution of the record, and it does not appear that respondent made any effort to have the record completed so as to have presented before this court this evidence which is vital to his case. However, we are of the opinion that upon the allegations of the complaint, as they stood admitted by the defendant, there was no issue upon the subject of number of shares of the corporation then outstanding. The plaintiff was not *533 entitled to raise such an issue by introducing evidence (to which defendant duly objected) contradicting the allegations contained in its own complaint.
The judgment is reversed.
James, J., and Works, J., pro tem., concurred.
