Sheakley v. Nelson

CHIPMAN, P. J.

The complaint sets forth a written contract, relating to the transfer of certain shares of the capital stock of the Hercules Manufacturing Company, a corporation, by plaintiff to defendant, the plaintiff claiming that the shares were merely a pledge to secure the payment of money advanced by defendant to pay certain assessments on said shares, the defendant claiming in his answer that the intention of the contract was to effect a sale, and praying its reformation so that it would correctly express such intention.

[380]

The court found the facts to be in accordance with defendant’s contention and rendered judgment against plaintiff. Judgment was made and entered March 23, 1907, and plaintiff appealed therefrom on April 6, 1909, more than two years after the entry thereof.

The appeal from the judgment cannot be considered, and may be dismissed.

(Brownlee

v.

Rainer,

147 Cal. 641, [82 Pac. 324].)

On the appeal from the order denying plaintiff’s motion for a new trial, neither the sufficiency of the pleadings nor the findings in support of the judgment can be considered.

(Kaiser

v.

Dalto,

140 Cal. 167, [73 Pac. 828];

Holmes

v.

Warren,

143 Cal. 457, [78 Pac. 954].)

No errors of law are pointed out in appellant’s'brief, and there remains only the inquiry, Did the evidence support the findings ?

The transaction, as found by the court, briefly stated, was as follows: On April 8, 1903, plaintiff was the owner of 14,090 shares of the capital stock of the Hercules Manufacturing Company, and, on that day, plaintiff sold and transferred the same to defendant for the consideration of $1,500; A that on said day plaintiff and defendant entered into a written agreement, the intention of which, through mutual mistake, was not truly expressed; “that it was the intention of said plaintiff and said defendant to enter into an agreement of sale of said 14,090 shares of the capital stock of the Hercules Manufacturing Company, a corporation, and it was the intention of said plaintiff and said defendant to enter into an agreement under the terms of which defendant as an additional consideration to him moving from said plaintiff for the transfer and sale by plaintiff to defendant of said 14,090 shares of said stock, was to pay for said plaintiff to said Hercules Manufacturing Company, a corporation, in addition to said sum of Fifteen Hundred Dollars, on account of any subsequent assessment that might be levied against the stock of said plaintiff, the sum of One Thousand Dollars.”