Smith v. Randall

[196]

McCOMB, J.

From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover a judgment for money had and received, defendant appeals.

The facts so far as material here are:

Plaintiff filed a complaint reading as follows:

“Plaintiff complains and alleges:

“I

“That plaintiff and defendant are now and were at all times herein mentioned, residents of the County of Los Angeles, State of California.

“II

“That within 4 years last past, at and within the County of Los Angeles, State of California, under a written agreement, the defendant received the sum of Three Thousand ($3,000) Dollars, for the use and benefit of plaintiff. That demand has been made upon defendant for payment thereof but the same has not been paid nor any part thereof.

“WHEREFORE, Plaintiff prays judgment against defendant for the sum of Three Thousand ($3,000) Dollars together with interest at the rate of 7% per annum from the date same became due, and costs of suit and for such other and further relief as may seem proper.”

Defendant objected to the introduction of any evidence on the ground that the complaint did not state facts sufficient to constitute a cause of action. This objection was overruled. The evidence discloses that defendant sold plaintiff 2500 shares of the capital stock of C. B. R. Mines Co., Ltd., a Nevada corporation, without first obtaining a permit from the Commissioner of Corporations of California so to do; and that the sale of said stock was for the purpose of financing the mining operations of the corporation. The transactions were evidenced by the following documents:

(a) “Feb. 9, 1937.

“Received of W. L. Smith $500.00 in full payment for 500 shares of my C. B. R. Mines Co., Ltd. stock, certificate for which will be delivered within ten days from date.

“(Signed) C. C. RANDALL.”

(b) “July 27, 1937.