Ruck v. Caledonia Silver Mining Co.

[357]

COOPER, P. J.

This action was brought to recover of defendant corporation five hundred shares of its capital stock, or in case a recovery cannot be had, for the value thereof. Findings were filed, upon which judgment was entered for plaintiff. This appeal is from the judgment, on the judgment-roll alone.

The findings show that at all the times mentioned in the complaint the plaintiff was the owner of said five hundred shares of capital stock; that at a meeting of the directors of defendant corporation held on June 5, 1902, the following resolution or order, levying an assessment, was passed, to wit:

“Resolved, that an assessment of fifteen cents per share be and the same is hereby levied upon the capital stock of the Caledonia Silver Mining Company, payable immediately to the secretary, and any stock upon which this assessment shall remain unpaid on the 9th day of July, 1902, will be delinquent and advertised for sale, at public auction, and unless payment is made before, will be sold on Wednesday, the 30th day of July, 1902, to pay said delinquent assessment, together with the cost of advertising and expenses of sale.”

Notice of said assessment was either personally served upon each stockholder or else in lieu thereof a notice was deposited in the United States postoffice addressed to each stockholder, and published at least once a week for four successive weeks in two newspapers of general circulation, all as required by law. There is no question as to the notices so given being in proper form, and published and served as required by law, but the record does not show that plaintiff ever received personal notice of the assessment.

The assessment on the stock of plaintiff was not paid, and after due publication of delinquency and notice of sale, the said stock was sold to defendant Krause on the thirtieth day of July, 1902, for the amount of the said assessment and costs, and the said shares of stock were transferred upon the books of the defendant corporation to said Krause in pursuance of said sale. In December, 1902, the plaintiff tendered to defendant corporation, and also to defendant Krause, the sum for which the said stock was sold, with interest thereon from the date of sale, and at the same time offered to pay the amount of any other assessments, with the interest thereon, and the amount of any expenses which defendants had