Van Horne v. Treadwell

SLOSS, J.

The court below sustained demurrers to the complaint, granting plaintiff leave to amend. No amendment having been filed within the time allowed, judgment was entered in favor of the defendants. The plaintiff appeals.

The complaint alleges the following facts: On June 30, 1910, plaintiff, who was then and has ever since been the owner of three thousand five hundred shares of the capital stock of the Sutter Hotel Company, pledged said shares to defendant Reese to secure the payment of a loan of two thousand dollars. In February, 1911, plaintiff, with Reese’s consent, pledged said shares to defendant Treadwell to secure an advance of four thousand three hundred and fifty dollars made by Treadwell to plaintiff. It was agreed that out of the sum so advanced, Reese’s loan should be repaid. This was done, plaintiff executing a note to Treadwell for four thousand three hundred and fifty dollars, and Reese turning over the stock to Treadwell npon receiving from the latter repayment of the two thousand dollar loan with interest. On March 26, 1911, plaintiff tendered to Treadwell payment of the full amount due upon the note, but Treadwell refused to accept said payment or to deliver the pledged stock. On March 31, 1911, plaintiff brought an action against the defendants to recover said stock, and tendered into court the sum of four thousand five hundred dollars in payment of all indebtedness due from plaintiff to Treadwell. On June 16, 1911, plaintiff recovered judgment in said action against defendants for the return of said three thousand five hundred shares of stock, and on June 19, 1911, Treadwell actually delivered the stock to plaintiff.

[622]

It is further alleged that on March 26, 1911, the day of the tender to Treadwell, plaintiff had received an offer of seven thousand five hundred dollars for said stock, “and was ready able and willing to sell said stock for said sum of $7,500.” On the nineteenth day of June, 1911, and at all times subsequent to the sixteenth day of June, 1911, the value of the stock was four thousand five hundred dollars and no more. In the action to recover possession of the stock plaintiff was compelled to and did expend one thousand five hundred dollars in the pursuit of the property, i. e., in payment of attorney’s fees. The complaint prays judgment for four thousand five hundred dollars.