*1 By. Co. v. 1917.] Tidewater immediately working substantially preced- whole of such employment, ing year, same a similar kind of in the days neighboring during place, earned same or employed.” 1913, p. so 289.] [Stats. bring of this case it that the facts within the

It would seem compensation for above enun- rule the admeasurement being in the evidence ciated; and a conflict before the there wage painters city is in commission as what scale jurisdiction Stockton, to decide that matter; respect we cannot its discretion interfere. application is denied. petition A court, to have supreme the cause heard judgment in the district of appeal, court was denied supreme January 21, court on 1918. No. Appellate District. 1737. Third [Civ. November (a TIDEWATER SOUTHERN RAILWAY COMPANY Corporation), Appellant, Respondent. MERZ, v. G. Corporation Subscription Law—Conditional Contract for or Stock— Against Enforcement purchase Subscriber.—A contract for the corporation request which there was indorsed at the of t'he agent corporation subscriber the sales "of the an right the subscriber should have the time within ten months n toreturn the stock and cash, binding back note or receive on the give subscriber reason his failure to the notice contem- plated agent in the indorsement, where the sales was without author- ity indorsement, upon promise to make the but made the same acceptance whole for submit matter re- jection, promise out, subscrip- carried but instead on the the corporation entered books of tion without the indorsed

condition. judgment Superior Kings APPEAL Court of Judge. County. Short, M. L. opinion facts are stated the court.

Meredith, Chester, Appellant. & Landis for Jacobs, Respondent. H. Scott By. 406 v. Merz.

CHIPMAN, brought by This isan P. J. action dollars, recover sum of to two thousand five hundred gether per with seven cent interest thereon from November following contract:

“Agreement to Purchase Stock. “I, of undersigned, hereby 2000 shares subscribe for the common stock of The Tide Water and Bailroad Southern existing corporation, laws Company, a formed and under the California, having principal place of its of business and City of of Stockton, State California. hereby agree pay $2500.00,

“I such sum of stock the year note, par thereof, one full value and to make such corporation payments, to said at time and the manner following: signing agreement, of this and $2500.00 payment a further of on or before the until the $ full purchase price paid, of said shares shall have been purchaser. a certificate of stock shall issued to agree corporation, payments I make “Said to which aforesaid, demand, hereby is authorized to collect and recover money agreed hereby paid. to be

“Payment must be made direct to The Tide Water and Physicians’ 4, Southern Bailroad its room offices, Building, Stockton, California. ‘‘ my day November, 14th Witness hand this of 1911.

“Name. G. and “Street Number. Lemoore Bank. “City or Town. Lemoore. “State. Cal. Avery.”

“Written jury cause tried the court without a and defend- judgment plaintiff appeals. ant had from which alleged complaint It and found the court that duly & Company The Tidewater Southern was a Bailroad organized corporation in 1910, and to be until continued so 11, 1912; day February, March about the sixteenth 1912, continuously including and to and thereafter Mafich 1912, Company 11, The Tidewater & Transit Southern duly company organized; railroad that on or about March “the said Water & Bailroad Tide Southern duly amalgamated capital stock, prop- and its consolidated claims, erties, roads, equipments, franchises, de- adjuncts, debts, contracts, obligations, liabilities, mands, agreements, Ey. Co. v. Merz. every and description assets of and capital kind with the every description . . liabilities . and assets of kind and Company,” The Tide & Southern the said Water Transit amalgamation by such “there was consolidation created corporation a new railroad Rail- named Tidewater Southern way Company,” amalgamation since the said last- named has been now ais railroad organized state, principal duly under the laws place city Stockton, business is the successor stocks, capital roads, equipments, all several properties, etc., of the said The Tide &Water Southern Railroad Com- pany and of Tide said The Water & Transit Com- pany, respectively, purposes for which the said companies same, were were formed virtue of amalgamation plaintiff, and consolidation the on or about March, day the eleventh “succeeded and became is, owner of and now been, ever since has the owner subscription agreement” of that certain hereinbefore set forth. *3 alleged is complaint prior

It in to said consolida- tion Company the said The Tide Water & Southern Railroad gave to defendant and defendant received due notice of said object thereto, intended “and or consolidation, did not dissent has, times, acquiesced at all and therein and consented subscription That all times since thereto.” at of defend- for stock in The Tide Water ant said & Southern Railroad Company, continuously 11, 1912, and thereafter March to Company said Tide Water & Southern Railroad was at ready, able, willing all times and to deliver to defendant the in Water said said Tide & Southern Railroad Company, said and that since consolidation the said The Tide Company &Water Southern Railroad and The Tide Water Company have, plaintiffs Southern Transit and and each of & has, and ready, them at all times now is able, been and are willing to stock in and deliver to defendant the said said Tide Railway Company. alleged Southern It is Water further agreement purchase that on November the said accepted by stock was & said The Tide Water Southern Rail- each plaintiff, them, of road “and it have duly performed of subscription the conditions said all of to this time.” performed them “That be agreement, constituting said articles new association or 408 v. incorporation, paragraph original referred to in III of the complaint herein, provided file that all stockholders each of corporations, said constituent to wit: Water The Tide & Company Southern Railroad and The Tide Water & South- ern Transit Company ipso forthwith and should facto become plaintiff corporation stockholders to the same extent they the same amount and each said stock- holders respectively held stock in either said constituent corporations respectively at the time of the consummation the aforesaid prior consolidation.” That to the commence- ment action, Railway Company of the Tidewater Southern payment foregoing demanded of the defendant of the men- paid tioned amounts. That has sum said dollars, any two five part thereof, thousand nor hundred unpaid. and the whole due That defendant did execute, make, plaintiff or deliver to or The Tide Water & Company the two Railroad thousand five hundred dollar note referred to and mentioned said note, writing agreement, any any or other than said sub- scription. plaintiff prays judgment, Wherefore etc. general complaint

A demurrer to the was overruled and de- fendant answered: Denied on information and belief the aver- complaint organization ments as to the of the various corporations and their consolidation and the facts in relation thereto. Denied that succeeded to or became the subscription agreement. prior owner Denied that said consolidation or at time at all the said The Tide Company anyone Railroad “or Water & Southern gave else defendant, received, and defendant due or notice alleged consolidation amalgamation said intended Water & Southern said The Tide Railroad Water & The Tide Southern Transit Company, the said has, times, or all that defendant acquiesced denies consented thereto.” Denied that companies therein or *4 alleged, all, had, them as or at or either of been or now is willing to ready, able, or deliver defendant the said stock Water & Southern in said The Tide Railroad Company. 14, on or about November any that or at Denied other signed all, “subscribed or agree- or at defendant time complaint.” IX of paragraph in said ment set forth Denied Railway Tidewater Southern plaintiff, that the de- from of the payment defendant amount manded mentioned Co. v. Mere. complaint, any thereof, part in and denied or or interest, any sum, principal or is now due sum or said owing plaintiff. defendant denied By an further answer, amendment to the (cid:127) “duly performed companies of or at all either said has agreement any subscription all or of the of said conditions at all.” Denied performed to be them to time or or agreement constituting new of association articles all or of the incorporation complaint, in referred to corporations, in or either stockholders each of said constituent ipso forthwith, all, or at or them, “should otherwise be, all stockholders or otherwise or at become facto any extent, same extent or amount, they or each the same amount or the same respectively held stock said stockholders either of corporations respectively said constituent at the time alleged consolidation, consummation of or otherwise or all.” alleges: separate only answer,

For further and “That purchase contract or that this defendant with said The Tide Water & Southern ever made Railroad contract whereby conditional wherein and right to return had the the stock said defendant mentioned (10) within in said contract at time ten months after thereof, his receipt cash, back note or receive figures was in the words and fol- lowing, (Then copy follows a to wit”: the contract as set complaint). alleged: And it is plaintiff’s out part portion as a said contract, “And and as entering into said contract part on the the consideration day 14th was, on said. defendant, November, there signed the back indorsed on following: manager, the sales “ £Nov. 14/11. “ days’ notice ten months date to ten ‘On The Tide Co., bearer of Railroad & Southern contract No. Water within named stock and receive return the can note keep pay back or note stock. or cash back ‘‘‘ Tide Water & So. Railroad Co.

“ ‘By Frank Avery, “ Mgr.’ ‘Sales *5 By. Go. v. Merz. 41Ó Tidewater Southern any “And that said defendant would into not have entered agreement purchase contract to stock whatever said The Tide Water & Company Southern Railroad manager, said sales part as a con- said contract .the and as therefor, moving sideration signed defendant, to said the said contract above mentioned.”

In findings addition to the in accordance with court complaint relating organization averments of the and companies consolidation of the several and the named capitalization as alleged, purposes therein and for which companies organized said were succeeded to and became the owner of all the of The Water' interest Tide & Company Railroad men- and to said contract in plaintiff’s complaint, tioned found it is not the court prior true that companies to the consolidation of the said said The Water & Company gave Tide Southern Railroad to defendant, received, defendant and due notice of said in- tended consolidation. “It is true that defendant did not object thereto, dissent it is not true but that defendant acquiesced has all or at times therein or consented thereto.” it is That true that at all times since November 1911, to on or about March the date of said con- solidation, said The Tide Water & Southern Railroad Company able, ready, all willing was at times to deliver to defendant the said stock in said mentioned in the agreement plaintiff’s set forth in complaint, and its cer- therefor; tificate or certificates that since said consolidation Water & said Tide Southern Railroad Company, Tide & Southern Transit plain- Water the said able, times, is, willing has now ready, tiff been at all to deliver to said defendant Tidewater Southern Railway Company, and its certificate or certificates therefor 14, 1911, or about That it is November true defend 1‘ writing signed agreed a certain document wherein he ant thousand shares common to subscribe two stock of Water & Southern The Tide Railroad said agreed pay corporation, therefor sum of two thou dollars, by giving his note delivery five hundred sand for said shares, two thousand to him the certificates but purchase stock was a conditional con said whereby right had the tract wherein and contract time within return stock mentioned Co. v. Merz. note receipt months and receive back thereof, ten the„ words cash, and contract was that said as figures following, wit: follows [Then signed answer, thereon, out in with the indorsements set Avery, That it true Frank hereinabove shown.] *6 or any into defendant entered said would have Tide any said The agreement to from purchase stock whatever man Company not said sales & Water Southern Railroad there consideration part a and as the ager, as of said contract moving signed contract above for, defendant, to said the said mentioned.” agreement purchase stock it to

“That is not true that said any day at time November, or was on the fourteenth all, & accepted by Water Southern or Tide said including but whole of Company; Railroad said portion the back of the said of said contract indorsed on mentioned, pre- duplicate was never to nor submitted above by manager corporation named sented said sales to said last accepted corporation; by by reason and was never said agreement no into be- thereof, contract or ever entered Company, said & Railroad tween The Tide Water Southern it, defendant; it is not that corporation, and the said true Water & Railroad Southern said Tide duly performed or plaintiff or have otherwise them, either of subscription agreement of said all or of the conditions time.” performed them to be to this agreement provisions of That it is that true complaint, to in the all of referred the stock- consolidation corporations of of the constituent said con- holders each ipso corporations “should forthwith and solidated facto corporation plaintiff in the and become stockholders they, and in the same amount each of said same extent stockholders, respectively stock in either held said com corporations respectively at the time consum- stituent consolidation.”. mation of aforesaid prior that commencement That trae of this Railway action, plaintiff Company de- Tidewater Southern foregoing mentioned payment defendant manded paid has amounts; is true the defendant that it that dollars, five hundred and interest principal, two thousand paid any part has not thereon, and it is true thereof.

412 v. Mere. true, That it is also, make, execute, that defendant did not plaintiff or deliver to or The Rail- Tide Water & Southern way Company the two thousand five dollar note re- hundred ferred mentioned in the forth set - complaint, any writing agree- note or other than said ment.

As conclusions of law, the court found that the defendant is judgment against entitled to plaintiff for his costs of suit. support There was evidence findings; sufficient the defendant had no notice of the consolidation referred complaint in the re- was the thereof, sult and that defendant did not to or ac- consent quiesce consolidation; signed the contract defendant was manager indorsed sales of the Tide- & water Railroad in the terms as shown -by copy thereof, part said indorsement formed the contract entered into defendant and as the con- therefor, sideration and that defendant would not have en- purchase tered into contract to shares had not *7 signed manager, sales the as above mentioned; that companies duly neither has or performed otherwise any part all or subscription of the conditions of said agree- ment in by referred to the performed. answer them

Defendant sign testified that he refused to the proposed subscription agreement in form, its then on his refusal manager, Avery “Well, the sales said: I will send whole thing indorsement) they in (including accept the can reject or they fit,” it as see and the defendant said: “All sign right; with I it.” that will He further testified that he was notified never Tide Water & Southern Railroad Company subscription accepted; his was that that was he any anyone never offered of its stock shares nor did ever tender offer to him plaintiff company shares plaintiff until counsel at trial for introduced and ten- , dered two company’s thousand shares He stock. testified further that of The he visited the office Tide Water Company & Southern “within Railroad Stockton the ten 1911,” 14, months after November and saw the who secretary, about,” knew “what wanted to find out but that he was told president, Bearce, inquired, Mr. for whom he was there; Francisco, he went to that then San office of company there, Bearce, was but to meet failed Mr. By. v. never in company thereafter with until communication he received a letter plaintiff. introduced in evidence This was April letter plaintiff’s dated written attor- neys calling defendant’s attention to the contract of Novem- ber 14, 1911, informing him in that is the successor property interest all the of The Tide Water & Company obligation Railroad calling upon pay him to attorney November 1911. To this letter defendant’s made answer defendant’s terms instructions: “That subscription complied company; were never the stock never Merz, was Mr. no was delivered to demand ever for payment subscription any part made on him of his of it. Mr. Merz subscription understood was can- that celed.” correspondence ensued, Some further fruitless on 9, 1914, years November subscription three agreement signed, complaint was this action filed. was

Mr. Bearce, president of plaintiff corporation, was who also secretary of Tide Water & Southern Railroad subscription agreement signed, was testified Avery November, was a stock company salesman of latter 1911; subscription that he was furnished with blanks and triplicate, literature which were to be made in and “was sent subscriptions agree out to solicit company”; that the complaint ment forth in set 'sent was officeand November, 1911; recorded book in loaned Avery two hundred dollars “on account of his com subscriptions sale”; always mission for this these were accepted in, Avhen considered as sent there was thanking subscriber; form of out letter which sent (there no that defendant evidence received letter receipt of acknowledging he testified he' any kind) from the ; notice of never received salesmen, of that the AA?hom the witness testified there were agents charge; “that could thirty, sell were under time fact, four-fifths probably partial payments; *8 payments.” writing He testified on partial AAras sold in Avery’s set out answer “is the back of the you Q. you, Did handAArriting.”, “The Court: when sent ,your out, give regard written in agents them instructions No; they A. authority stock? sell Avent to their outlining prospectas proposition a gave to work them Ave from Stockton gave a lot of indorsements and we them v. Mere. 414 Tidewater if Q. you Court: I asked bankers. The Modesto—different No, except written they had written A. instructions. than passed There was never other contract. resolution general giving complete charge of the resolution me the business—-charge management, general handling of the Q. company. The Court: the sale the stock the whole Of sir; management everything concerning Yes, it? A. Q. got Did I written contract here. The Court: have agents? provide powers as that written contract their Well, they A. were that contract— Court: entitled yes Yes, they A. make Q. that, no. couldn’t Just answer in Q. You had that there? any alterations. The Court: ought to be ad I that contract A. Yes. The Court: think If there is such a in Mr. Chester: mitted evidence. says you. The He get it and mail it to Court: we will hold of agents; not A. were with there was such a contract. There Avery in most of them we had contracts particular; ’’ produced and no other evidence The contract was not with. given Avery’s authority or instruc question Avery in witness testified further that “turned tions. The fifty re worth of business. I cannot about thousand dollars many We how little documents sent in. member these of stock about two thousand sold a million dollars worth selling agent up if a used one book subscribers; five hundred subscriptions were re get ... As the he would another one. in and from they book, office were this ceived entered they ledger.” transferred to there were only question is Appellant brief: “There one states executed the presented, that is whether or not defendant to,” subscription agreement above referred the one set out complaint. only question, could If were the there .signed answer, for it is admitted defendant be but one something however, agreement. is Realizing, there case, “the up question takes more duplicate [given de- writing upon back of the effect of the agree- fendant], which was not embodied company.” ment sent to “in cases of sub- position by appellant is that taken oral, is any contract, written

scriptions with the contract filed part made a stockholders, knowledge of the other kept thereby void, on the other stockholders and is fraud constructive is a *9 Ry. v. Mere. Tidewater subscription agreement the filed with that the agree- will if or be enforced as the collateral so-called secret ment precise had not been is claimed this made.” It question Quartz Mfg. in Joyce, was decided Glass & Co. v. App. 27 Cal. Pac. That case was cited [150 648]. appellant against same wherein it was in the action Vance, reported one App. 503, 1097], in 31 Cal. Pac. [160 Joyce pointed ques- wherein it was in out that case “the the subscription agree- validity tion involved was the ment promissory given the terms which the for the note purchase price paid of the stock was out of dividends corporation. be thereafter declared The court held practically gift amounted to a stock in violation of provision Code, of section 359 the Civil said that the agreement parties having that effect was void.” therefore It true that the court in the Vance ease referred rule agreements “that collateral subscriptions, by secret as to stock advantage gains which the subscriber an over other subscribers, are void, for reason advantages that such secret in the are upon subsequent nature of upon per- fraud subscribers and sons who afterward corporation.” become creditors of the It Joyce in principle was shown case that apply did not among for reasons given, others, equally there pres- true in the ent case, appear that it did not there were sub- other scribers who could been plaintiff’s have defrauded upon respondent’s subscription, reliance appear nor did it corporation was subsequent that there of said creditor who rely dealing could thereon in did with the corpora- said tion, secrecy nor was it shown that there was contem- plated respondent making connived agreement “by collateral which was permitted within ten subscription by months to cancel recalling thereafter his note.” appear respondent Nor did “had knowledge of agent the fact that the authorized cor- poration agreement also such upon failed to indorse original agent = which retained behalf of corporation.” The court said the Vance case: “What- secrecy agreement respect

ever there was in to this im- parted corporation entirely by through itself the act or neglect being agent; so, of its and this authorized and no rights being subsequent subscribers creditors involved ease, it would manifest fraud be a the defendant

416 Co. v. wrong permit advantage of its own to take by repudiating agreement enforcing its while the defendant’s given only evidently of the reserva note, because court permitting tion recall.” The also that case case of Boulevard Gar cited the Schulte v. *10 1013, Co., 464, 1914B, 44 dens Land 164 Cas. [Ann. following (N. quoting lan 156, 582], L. A. 129 Pac. the S.) R. right sum guage : the stock “The to return and recover the agreed paid upon to such return a material and indi be was upon plaintiff part of which' the visible the consideration agreed parties, to a As the become stockholder. between manifestly unjust permit corporation to to the retain would money repudiate and at paid plaintiff the same time the exchange money. gave in for The ob which it the promise the agreed of the upon return shares the sum ligation pay to the undertaking arising as new is not to be viewed paid to be the relation of -plaintiff has assumed the stockholder. after plaintiff was conditional. He never became to The sale qualification except subject might to the that he stockholder ’’ stipulated upon terms. his the shares return were, opinion, the facts stated the In the Yance case the defendant executed a “on December sub- capital five shares the stock of scription for hundred the agreed for Railroad which he Tidewater date, months giving ten after or before pay his $625 to agent amount. The authorized for that promissory note and received the corporation subscription who solicited the ‘original’ thereof, marked copies one and the two other signed by were the of which defendant ‘duplicate,’ both original corporation, the the agent being on behalf of the duplicate by him and the being for the retained duplicate On the back of defendant. delivered following was written: memorandum ‘Dee. ’ll. Ten of this if holder contract is for date reason months agree equivalent.— note or to return cash we dissatisfied Railroad Co.’ Coffin, Tidewater Southern This writ- IT. C. original back subscription on the ing indorsed was not company. agent "Within for the by ten months retained subscription, requested his defendant date of the note, request of his refused return contrary, with, but, on the transferred the note comply brought herein, who suit. The plaintiff defendant by way of foregoing action, facts defense pleaded By. Co. Nov. 1917.] v. same, judgment upon proof of went his favor.” judgment brought upon affirmed. action The note, therein differs from the facts promissory appeared note was that no exe-

present case, which it ever brought, issued until the suit was cuted and no shares ever made tender thereof. came into court and present also, in case, that the case Vance differs case, within ten months date of defendant In present note. subscription, return of his requested the something an effort to ascertain case the defendant made saw no one matter within ten months but authorized about the to act with reference to it. contemplated

It will be that the noted payment note, of a promissory the shares the execution unexplained which for some reason never he was called execute never did execute. The on the indorsement true, contemplated giving back of the it is Tide Railroad notice to The Water & Southern ‘‘ desired to return the stock receive pay keep note back or cash back or note and stock.” It seems *11 part treating to as an us that the indorsement indivisible rights by giving of defendant lost his not the none of contemplated indorsement, and that consid- the notice the upon ering all of case the facts which the the facts applicable. decided, case was the latter case is here Vance question A as here involved was before somewhat similar (the Railway Company court in Tidewater Southern same Harney, here) against App. plaintiff as Cal. Pac. [162 in writing In that for ease the subscribed five 664]. shares stock of Tidewater & Rail hundred of the the agreed pay for to five road which she hundred dol subscriptions in triplicate, The were as in the lars. made out subscribing case, the present and at the time defendant exe hundred for said her note for five dollars stock. The cuted duplicate subscription, by defendant, retained had on written following: “July 25-11. months thereof the Ten the back wishes, agree date, if of contract we to holder take per purchasers purchase price of $1.00 off hands the by Morey, R. R. Co. water & Southern R. U. share—Tide written"upon original subscrip the Dept.” This was See. company. after consoli Some time the the tion retained organ- companies to, as referred of the dation App.—27 35 Cal. Southern'Ey.

418 v. Merz. ization of corporation, brought action promissory opinion note. In the written Mr. Justice Burnett, we main were features held ease swpra. similar case, to those of the Vance It was also held controlling that this collateral was the considera- tion It properly parol. the note and could be shown considered, was also held that “the transaction must be obli- course, entirety, conditional and the effect [of though gation] fully ex- is the same as the contract were pressed in one is also called to the instrument.” Attention fact, no present as that the interests of case, exists stockholders or was also held, creditors are involved. It present case, we are satisfied so held in the should be. “appellant authority permitted deny should agent agents contract. The enter into such conditional ; they subscrip- were authorized to sell stock had the blank tion In represented, the .sale of the stock they book. there- fore, purchaser corporation. nor was not warned put upon inquiry authority limitation of the agent receiving subscriptions. purchaser had right to assume that cor- the salesman was authorized legal poration to do those acts which the em- nature ployment agent, in seemed to warrant.. The other words, ostensibly authority, upon clothed with unlimited fami- n principles liar appellant should not be heard to disavow repudiate the contract made It is further him.” shown opinion justifying in- that there was some evidence Bearce, president corporation, ference that Mr. of the knowledge that, had agreement, this conditional and while support reached, fact lends conclusion was not Speaking essential feature which the decision rested. agent, further of the the court said: duty “It was the agent proper ‘original’ to make the indorsement on the sub- scription! If he had so, done would have through knowledge actual channel the entire contract. *12 by agent But the fraud of the the said indorsement was made, respondent as far as is concerned, and must the case though be viewed then had as indorsement been made acquiesced by appellant; agent and in for the act of the under principal, the circumstances is the act of and latter consequences agent’s of must suffer the failure to as do agreed. phase of particular This the ease is discussed Ey. Noy. 419 Co. v. Merz. great learning by Lorigan in Otis Elevator Mr. Justice S.) Bank, (N. v. First Nat. 163 R. L. A. [41 exposition of 704], Pac. wherein is an elaborate only persons doctrine that principal ‘a is liable to third agents negligence in for the of the transaction of torts, of agency, frauds, business but likewise for the wrongful agent other acts committed such as and ’ part of of the transaction such business. ... It manifestly agent origi duty to file herein parties corpora nal the actual of the with the acting directly scope authority tion. He was within the his principal, he secured and filed it with the part his of a fraudulent omission material of the sub scription regarded light as would must be the same be a of material is fraudulent addition term. result though agent parties status fixed as appellant his duty, done is have deemed to ratified the ’’ conditional contract. It also no is held that case that was merit in there contention that the defendants should have re- independent damages an sorted to action for to enforce her claims under the for the reason that “the consid- for eration the note was involved, of course that can be up set as a defense to an action on said note. Or if we view the element fraud to we adverted, have attention may be permissible directed to the procedure established and as Austin, set forth Field 692], v. 131 Cal. Pac. cases, recognizing other party methods three which a de- may frauded obtain (1) relief as follows: Cancellation or rescission, whereby defrauded party procures an instru- ment be set original aside himself to be restored (2) position; affirmative relief an pecuni- action to recover a ary compensation injury sustained fraud necessary defendant where no is cancellation the basis recovery, (3) (which such defensive relief present to), whereby up by way ease resorted the fraud is set of de- brought an fense defeat action an apparent enforce obli- ’’ gation liability. are with the We satisfied conclusions reached the trial judgment court, and the is, therefore, affirmed.

Hart, J., and Burnett, J., concurred.

420 Tidewater Co. v. Merz. petition rehearing by A for a of this cause was denied the district appeal court of on December follow- ing opinion then rendered thereon: Appellant has rehearing petitioned THE for a COURT. by above-entitled cause after decision rendered affirming judgment court the lower court. clearly controversy

The material facts involved in the appear in opinion, the former and need not here be reiter- opinion In ated. that it was said: “It seems to us that treat- ing contract, the indorsement as an part indivisible rights giving defendant lost of his notice con- none templated indorsement, considering in the all upon the facts facts this ease and Vance case decided, applicable.” lan- the latter case is here This guage, claimed, confusion, peti- it is lends itself to some Harney position tioner herein takes the that the Vance and option duplicate regarded eases on the back of the be must part (and binding as a of the contract those cases hold), so though option parties, said was never communi- both thereupon duty Merz, petitioner, cated to that became relationship, if notify to terminate to so desired specified option, within ten months in the said say that, is in therefore, the court error if it intends to notify appellant corporation Merz that need not so within the said time. conceding petitioner contention of

Even that this cor- rect, very opinion, after a careful re-examina- we are petitioner record, tion of the is not entitled to a rehear- ing, and that the result reached the trial court was correct one. upon being is to solicited for

It be remembered sub- scription appellant’s agent, Avery, Merz declined to enter given option he was a ten months’ into unless money back. It is at once return his and receive Avery negotiations Merz con- apparent between that the things; they amounted to one of two either stituted at least through agent to Merz con- an from the offer company. offer from Merz to the stituted an aspect in which to view trans- the true If the former be a similar condition to that should indeed have action, then we Harney namely, Avery, cases; existing in the Vance and By. v. authority as agent, enter into modified option, com- therefore, that, said contract was pleted, stockholder, upon signing Merz made a no Viewing light contract. the case in this would there question option but Merz would have to exercise his returning period stipulated his stock within *14 option; signing of is, ten from that months the date standing the having so, has no contract, not done in court. appellant

But as to testimony overlooks the effect Merz’s of negotiations, phase only upon the which is the evidence this “Q. just Merz the Now, case. was asked: state to court by Avery regard accept- what was said Mr. to the nonacceptance or ance what, if anything, this Avery going was to with or not he do this contract—whether was to submit it company, was stated.” And as customary answer was: “A. He make stated that it was to payment stock, a subscription agreements this, these for I that, says, ‘Well, refused to make and he I send will thing reject they they this whole in and accept can it as it ” fit,’ I says, right, sign see ‘All I with that will it.’ clearly taking This contract, Avery shows that in did purport to act with authority company to or to as- bind responsibility sume accepting for the a sub- scription imposed by on the conditions but both that Merz, parties proposition understood that Merz’s anwas offer to appellant might be submitted to for such it action as take. substantially Therein differ does this case from the Vance and Harney cases, agent acting the offer came from where purporting apparent scope authority. act within to of his is propo- it now settled that And connection where the from corporation, sition offer does come from but subscriber, subscription accepted by must be the cor- Appellant argues then poration. “it repeatedly has been subscription by accepted held that the entry books, spends an in its money it makes thereof on the it, being or otherwise treats the faith as ac- (Clark cepted. and Marshall on Private Corporations, sec. ” 1366.) 439b, p. assuming Even this to be a state- correct state, application law here, of this it has no ment for very proposition reason obvious offer of Merz appellant. never The entry submitted its stock re In Rust. acceptance, was book, which is claimed an constitutes original Merz, minus proposition Avery made option proposition submitted not the feature, and was appellant. Merz him be submitted and intended fraudulently already proposition, pointed out, Merz’s Avery. was entered Obviously, then, retained no fraud, agent’s received corporation, into. The because itsof thereupon essentially different accepted proposition previ- proposition by Merz, submitted rights were ever ously been No mutual refused him. light, it created, Viewed and so could be lost. none giving rights by not ,is,a sound conclusion that Merz lost no contemplated in the indorsement. notice regarding appli- opinion former Whatever is said in our must case instant Harney cation cases-to the of the Vance and light said. what is here likewise be understood those cases nothing between There is at all inharmonious this. petition rehearing is denied. court, supreme in the

A have the cause heard petitiori judgment appeal, court of was denied in the district supreme January 24,1918. court Appellate District. First November No. 717. [Crim. Application of

In Matter of the C. G. RUST for a Writ Corpus. Habeas op Optometry—Osteopaths Surgeons—Practice Physicians Ex- op person practice Statute.—A licensed to cluded—Construction duly physician surgeon not a licensed within the osteopathy is practice regulating optom- of the act meaning of section 10 p. 1097), provisions which declares etry (Stats. duly prevent' physicians construed to licensed not be act shall fitting glasses treating eye, to the human since surgeons practice surgery (St'ats. 1913, of medicine and regulating act professions, pro- two a distinction between recognizes p. 722) and the issuance different examinations cer- different viding for tificates. Corpus. Habeas a Writ of

APPLICATION