139 Cal. App. 93 | Cal. Ct. App. | 1934
Tbe plaintiff instituted this action on January 5, 1932, to compel tbe defendant corporation to issue new certificates representing shares of stock of said
Upon this appeal the appellant advances three contentions which it maintains sufficiently demonstrate that the
Examination of the record impels the conclusion that the first of the above-mentioned contentions is not sustainable. Evidence which tended to show that the five certificates mentioned in the complaint were issued by appellant during the year 1899 to the various persons designated in the pleading and that each of these certificates had been lost or destroyed was produced by respondent during the trial of the action. Appellant presented no evidence which controverted these facts. It must, in fairness to appellant, be.observed that, under the circumstances which were made to appear, such evidence was practically impossible of production. The original active existence of the appellant corporation was short lived. It was organized in 1899 and for a few years thereafter its stock was sold to people who resided in Kings County. The corporation was organized for the purpose of drilling for oil on certain land owned by the corporation. So far as appears, whatever drilling operations were commenced by the corporation were unsuccessful and after a few years it defaulted in the payment of taxes on the land and in payment of its corporate license tax to the state. The charter of the corporation was forfeited and the land was sold to the state for delinquent taxes. Capital stock of the corporation was originally issued to some 136 persons. In 1922 or thereabouts all of the original records of the corporation were destroyed by fire. In the year 1928 a producing oil well was drilled on land near that which had been owned by the appellant. Interest in the appellant corporation was then revived and the delin
Appellant’s second contention is likewise untenable. In the final analysis it is also a contention of evidentiary insufficiency. There is nothing in the language of the statute which declares that one who has intentionally destroyed certificates is not entitled to the remedy of reissuance. The wording of the statute is “’Whenever a certificate . . . has been lost or destroyed.” There is no expressed limitation with respect to the manner of destruction. It may be conceded that it is the general rule that every presumption is against the despoiler of documentary evidence. This is true because the inference which arises from proof of intentional destruction is that the truth which would have conclusively appeared from the production of such evidence, would have operated against the despoiler. Nevertheless, we know of no authority which declares that the presumption is conclusive. Although evidence of the issuance of the certificates to the persons who claimed the ownership of them and of their destruction by these individuals must necessarily have been clear, satisfactory and convincing, the question of its quality and of whether it successfully measured up to this rigorous test was one that the trial- court had to answer. We cannot declare that there was not substantial evidence supporting the findings of the court and its determination must therefore be regarded as conclusive upon this appeal.
Appellant’s argument that a right of action to compel the issuance of new certificates is limited to the original owners of lost or destroyed certificates is likewise unconvincing. It must, however, be conceded that the language of the statute lends support to such an argument. The phraseology of the statute is: “Whenever a certificate . . . has been lost or destroyed, the owner thereof may bring an action . . . for the purpose of obtaining a new certificate.” Strict con
Appellant presents a final objection to the judgment which provides as a condition thereof that respondent must deposit security or a bond to be approved by the court in the amount of $2 for each share of stock represented by the lost or destroyed certificates. It appears that a bond in which respondent alone is principal in the amount thus required has been filed by respondent and has been approved by the trial court. It is urged that appellant is entitled to the security afforded by the financial responsibility of those persons who had assigned their claims to respondent. In other words, appellant contends that the court should have required as a condition of the judgment that a bond signed not only by respondent but also by his assignors as principals should be given. The contention is wholly untenable. The statute provides that “the court shall order, as a condition of the judgment, that the plaintiff shall deposit adequate security, or deliver to the court such bond, approved by the court, as will be sufficient to protect and indemnify the corporation . . . against loss, expense, or liability”. It is not contended that the bond which has been filed and approved will fail to afford to appellant full and adequate protection. The bond required as a condition of the judgment is in strict conformity with the above-quoted
For the reasons stated herein, the judgment from which this appeal has been taken is affirmed.