Gregory v. Haworth

By the Court, Sanderson, C. J. This action was brought to compel the defendant to transfer to the plaintiff twelve shares of the capital stock of the California Stage Company, alleged to have formerly belonged to one Bartol and assigned by him to Riddle and Eaton, and by them to the plaintiff, or in case the said Haworth had in any manner disposed of said stock, or any portion thereof, to compel him to account with and pay to the plaintiff the value thereof. The complaint is most singularly drawn, and seems to proceed upon inconsistent theories, and it is not easy to determine upon which theory the pleader expected to recover. It alleges that the stock in question once belonged to Bartol, who, while the owner thereof, made and delivered to Haworth two promissory notes, amounting in the aggregate to the sum of fifteen hundred dollars, and turned the stock over to him as collateral. That Riddle and Eaton were creditors of Bartol to the amount of thirty thousand dollars, and Bartol gave them an order on Haworth for the stock upon the payment by them of the amount for which it was pledged. That Riddle and Eaton tendered the amount due, and demanded the stock of Haworth, who refused to transfer it. Upon this theory the plaintiff was doubtless entitled to recover. But, as if to prevent such a result, the pleader proceeds to characterize so much of the foregoing facts as relate to the question of pledge as pretended on the part of Haworth, and not true in fact, and to allege that the stock was in fact transferred by Bartol to Haworth “ for the fraudulent, sole and only purpose of hindering, delaying, and defrauding the creditors of him, the said Bartol.” Thus, in view of the doctrine that a pleading must be construed most strictly against the pleader, the complaint, so far ,as it proceeds upon the theory that Haworth held the stock as collateral security for the payment of the [656]fifteen hundred dollars due from Bartol, becomes felo de se ; and the matter thus far alleged only amounts, in logical effect, to an averment that Bartol was the owner of the stock, and while so the owner assigned it to Haworth in fraud of his creditors; yet the case seems to have been tried upon the theory that a pledge was averred and the plaintiff allowed to recover a judgment upon a finding of facts which at the outset he declared to be pretended and false. This cannot be allowed without a gross violation of the rule which requires that the allegations of the complaint, the evidence and the findings should correspond in légal intent. The averment, the proof and the finding should harmonize and proceed upon the same theory, each pointing with' logical distinctness to the same result. A recovery, if had, must be secundum allegata,. and must be grounded upon the facts which are averred in. the complaint, and not upon those which are denied.