National City Bank v. Chubb

CRAIG, J.

This is an action to enforce the liability of certain stockholders in the Mont P. Chubb Drug Company. A general demurrer was interposed by the defendant, Mont P. Chubb, which was overruled. Thereupon an answer was filed. On the trial, the defendant introduced no

[656]

evidence. The appeal is based upon the judgment-roll alone.

The action is upon two promissory notes. The complaint alleges that the plaintiff purchased them for a valuable consideration and before maturity, and it states the date upon which the notes were made but contains no allegation as to the date on which the original indebtedness was incurred. There is ample authority for the proposition that in an action under section 322 of the Civil Code, it is necessary to allege the date upon which the debt or liability was incurred.

(J. I. Case Plow Works

v.

Montgomery,

115 Cal. 380, [47 Pac. 108];

Winona Wagon Co.

v.

Bull,

108 Cal. 1, [40 Pac. 1077];

Hunt

v.

Ward,

99 Cal. 612, [37 Am. St. Rep. 87, 34 Pac. 335].) Section 322 of the Civil Code provides that the “liability of each stockholder is determined by the amount of stock or shares owned by him at the time the debt or liability was incurred.” In

Hunt

v.

Ward,

the action was on a promissory note and was brought by the payee. The date of the making of the note was alleged but not the date on which the original indebtedness was incurred. The court there pointed out that a promissory note might not represent the original debt or liability which might have been contracted before the defendant became a stockholder. In both of the other cases,