Jones v. Goldtree Bros. Co.
Before: Cooper
Synopsis
Corporations—Liability op Stockholders—Statute op Limitations. —The liability of a stockholder of a corporation for his proportionate share of its debts is created by statute, and is barred within three years after the cause of action accrues.
Id.—Collection by Bank—Deposit on Open Account—Accrual of Cause of Action against Stockholders—Change to Savings Account.—The cause of action against the stockholders of a bank for a collection made by the bank for the plaintiff, and immediately credited to the plaintiff on his open account with the bank by plaintiff's authority, then accrued, and the statute of limitations in favor of the stockholders then began to run, and its running cannot be affected by a subsequent transfer of the credit to a savings account for the purpose of drawing interest.
Id.—Bower of Corporation—Extension op Time.—The corporation has no power, without the consent of the stockholders, to extend the time for the commencement of an action against them, by any subsequent renewal or extension of time for the payment of its original debt.
Id.—Inapplicable Instruction—Agency of Bank for Payor—Directions to Bank.—It was error to instruct the jury that if they found certain material facts, the bank was agent for the payor in receiving the money, and he might withdraw it before certain directions were complied with, where there was no evidence from which such facts, agency, or directions could be found or inferred.
Id.—Order Granting New Trial—Sufficiency op Specifications— Liberal Bule—Bar of Statute.—Upon an order granting a new trial, the specifications of the statement as to insufficiency of the evidence to sustain the verdict will be deemed sufficient under the liberal rule now adopted and followed, where they were not objected to when the statement was settled, and it contains substantially all of the evidence; and where the verdict was against the evidence as to the bar of the statute, an objection upon appeal from such order that the specifications went to probative facts connected with the original bar of the statute which might possibly not be inconsistent with the verdict against the bar of the statute, will not be entertained.
Id.—Plea of Statute not Waived—Presumption.—Defendants did not waive their plea of the statute of limitations by failing to ask the withdrawal of the question from the jury or to ask an instrue- • tion in relation thereto. They had the right to rely upon the presumption that the verdict would be in accord with the law and the facts.
COOPER, J.
This action was brought to recover of defendants, as stockholders of the County Bank of San Luis Obispo the proportion of certain indebtedness due plaintiff, in such amounts as may be found to be severally a liability against each defendant. As to the greater portion of the claim there is no controversy. But as to one item of $2,312.20 there is a question—and the principal question here—as to whether or not it is barred by the statute of limitations as to each and all the defendants. As to this item, the complaint, which was filed July 18, 1900, alleges that the plaintiff deposited with the County Bank of San Luis Obispo “on July 27, 1897, $2,312.20.” Defendants each pleaded that the cause of action “is barred by subdivision 1 of section 338 and section 359 of the Code of Civil Procedure. ’ ’
The case was tried with a jury and a verdict returned for plaintiff in the amount claimed, which included the proportionate share of each defendant of the $2,312.20. In other words, the jury, under the evidence and instructions of the court, found against defendants oti their plea of the statute of limitations. Upon the verdict so found judgment was entered. Defendants made a motion for a new trial, upon a statement of the case, and the court granted the motion. Plaintiff brings this appeal from the order. The court in granting the order held that the item was barred by the statute, and we think the ruling correct. The individual liability of a stockholder of a corporation for his proportionate share of the indebtedness is created and exists by the constitution (art. XII, sec. 3) and Civil Code (see. 322).
(Redington
v.
Cornwell,
90 Cal. 63.) An action upon a liability created by
[385]
statute, other than a penalty or forfeiture, must be brought within three years after the cause of action accrues. (Code Civ. Proc., sec. 338.) When did the cause of action accrue against these defendants'? It appears, without conflict, that, with authority from plaintiff, the bank, on the fourteenth day of July, 1897, collected for plaintiff and placed to his credit on his open account $2,588.85, which included the $2,312.20 in controversy. No part of this sum has ever been repaid to plaintiff. On July 27, 1897, plaintiff caused the bank to transfer the $2,312.20 from his open account to a savings account, and the sum was entered upon plaintiff’s savings-account pass-book on said date. The transfer was made by plaintiff drawing a cheek in favor of the bank against his open account, and the bank charged the check to the open account and credited it on the savings account. The check was evidently drawn for the convenience of the bank and as a voucher against or explanation of the item charged on the open account. The amount so placed to plaintiff’s credit on his savings account was to draw interest if left for the time provided in the by-laws and rules of the bank. It is clear that the plaintiff on July 14, 1897, by reason of the deposit, loaned the amount to the bank, and afterwards on July 27th the loan was to be continued, but to draw interest according to the terms of the pass-book. The money was by the terms of the savings pass-book to be paid on demand, but not to draw interest except left six months on deposit. There was no time after the fourteenth day of July, 1897, that the plaintiff could not, after demand, have begun and maintained an action against the bank for the said sum. The bank did not pay plaintiff the amount on July 27, 1897, nor at any other time. The change by the transfer of the account was only a change in the character of the loan, so that by the contract of the parties it was to draw interest. When the debt was contracted the liability arose. The corporation had no power without the consent of the defendants to extend the limitation of the time for commencing the action. (Reding
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