Smith v. 49 & 56 Quartz Mining Co.

Baldwin, J. delivered the opinion of the Court—Cope, J. concurring.

On the 30th day of May, 1858, the' plaintiff was the owner of two and a half shares of stock in this company. A certificate was issued upon each half share. On that day, the company levied an assessment upon the stock of one hundred and sixty dollars to each share, to be paid on the 15th June thereafter. The shares of the plaintiff were advertised for assessments [245]which he had failed to pay, and, on the 16th dune, sold at public auction for six hundred and nine dollars, to one Wright. On the same day, White transferred the shares to W. Whiteman, one of the defendants, at that time one of the Directors and the President of the company. There was proof that Wright bought the stock for Whiteman, and with money furnished him by Whiteman. It is, also, in proof, that Whiteman, in this matter, was acting for one Shellcross, of Sacramento, who sent to White-man seven hundred dollars. The money seems to have been furnished by Shellcross, by an undertaking or arrangement with Smith, or for him, whose note was proposed to be taken for the amount. A paper was executed by Whiteman to Shellcross, as follows:

“$805. Yankee Hiel, July 17th, 1858.

Three months after date, (without grace,) I promise to pay to Wm. D. Shellcross or order, at the office of (A. K. Grim, Sacramento,) the sum of eight hundred and five dollars, value received; and to secure the payment of the said sum of eight hundred and five dollars, when due, I have transferred to the said Shellcross absolute two and one half shares of stock of the 49 & 56 Q. M. Co. Eos. 33, and 34, and 45, and the same to be transferred upon the books of said company; and for and in consideration of the above sum of eight hundred and five dollars, I hereby sell, transfer, and set over, to the said Shellcross, his heirs and assigns, all my right, title, and interest, to the said two and a half shares of stock in said company, provided I fail to pay to the said Shellcross the above sum of eight hundred and five dollars, on the day the same becomes due and payable.

Witness my hand and seal, this 17th day of July,' a. d. 1858.

G. F. Whiteman. [l. s.]

Witness, John L. Viven."

Shellcross executed to Whiteman a certificate that such stock had been transferred on a promise to retransfer to Whiteman if the note was paid at maturity. The stock was on the books after the sale in the name of Whiteman, and Whiteman transferred to Shellcross. Afterward, Whiteman gave an order on Shell-cross to deliver the certificate pledged to Mrs. Smith, on the payment of the money. Mrs. Smith, sometime afterwards, ten