Harding v. Vandewater
Before: Temple, Wallace
Synopsis
Appeal from tbe District Court of tbe Fifteenth. District, City and County of San Francisco.
This action was commenced against Robert J. Yande-water in bis lifetime, to recover six thousand dollars and interest alleged to be due upon a promissory note made by him, and payable to the order of the Real del Monte Consolidated Gold and Silver Mining Company. While the action was pending, Yandewater died, leaving his wife, Ann Sophia Yandewater, sole executrix. The claim against the estate involved in this action was presented to the executrix, and by her rejected. The action was duly revived against her, and she appeared and defended, adopting as her own the answer filed by her testator.
The promissory note set forth in the complaint, was made and delivered to the said corporation in payment of an assessment of twenty dollars per share, on three hundred shares of the capital stock of the corporation; which assessment was due at the date of the note.
At the special meeting of the Board of Trustees which adopted the resolution levying the assessment, in payment of which said note was made and delivered, only seven of the nine Trustees composing the Board were present, and there was no proof of any notice of the meeting being given to the two absent Trustees.
The note was afterwards indorsed and delivered by the corporation to one Alexander Gamble, who afterwards endorsed and delivered it to the plaintiff.
The case was tried by the' Court without a jury. Judgment was for defendant, and plaintiff moved for a new trial, which was denied, and from the-judgment and the order denying a new trial the plaintiff appeals.
The other facts are stated in the opinion.
Tbe assessment was legally levied.
If notice to all tbe Trustees was requisite, it is to be presumed; and tbe testimony of tbe Secretary, tbat, on occasions of special meetings of tbe Trustees, it was bis custom to go around town and notify only sucb Trustees as be cciuld conveniently find, in number sufficient to form a quorum, was not sufficient to overcome tbis presumption. (Sargent v. Webster, 15 Mete. 504.) But notice to all was not required.
Tbis corporation was formed under tbe Act of April 14th, 1853, “to provide for tbe formation of corporations for certain purposes,” and tbis assessment was levied under tbe provisions of tbat Act, which is complete in itself, and not subject to tbe general provisions of tbe Corporation 4etofl850; (Hittell’s Dig. 932 to 958.) We need not, therefore, loot outside tbe Act of 1853 to ascertain in whom the corporate power was vested and bow it was to be exercised. Tbat Act was tbe charter of tbis 'corporation.
Tbe fifth section of tbe Act provides tbat “tbe corporate powers of tbe corporation shall be exercised by a Board of not less than three Trustees, who shall be stockholders” etc., and then proceeds to declare when and bow tbe Trustees shall be elected, and bow vacancies shall be filled.
Opinion — Temple
Temple, J., delivered the opinion of the Court, Crockett, J., Bhodes, C. J., and Sprague, J., concurring:
The statement on motion for a new trial, does not specify particularly wherein the evidence is insufficient .to sustain the judgment, nor does it specify any error alleged to have [83]occurred at the trial. The only specifications of error are:
First — That the decision of the Court is against law.
Second — That upon the facts and evidence, the Court should have rendered its decision in favor of plaintiff.
This is clearly insufficient, as was held in Brumagim v. Bradshaw, (39 Cal. 24.)
If we could regard the statement, however, we are still of the opinion that the judgment must be affirmed.
The order levying the assessment, for which the note of Yandewater was given, was made at a special meeting of the Trustees, and there appears to be no substantial conflict in the authorities upon the proposition that, when there is no different provision in the charter or by-laws of a corporation, such meetings must be called by giving personal notice to each member of the Board of Trustees. The fifth section of the Act of 1853 (Statutes 1853, p. 281), which provides that a majority of the whole number of the Trustees shall form a Board for the transaction of business, and every decision of a majority of the persons duly assembled as a Board shall be valid, etc., does not change the rule. The question as to when they shall be considered as duly assembled is not settled by the statute.
The judgment and order are affirmed.
Concurrence — Wallace
By
Wallace, J.: I concur in the affirmance of the judgment on the ground of the insufficiency of the specifications of error; upon the other points discussed, I express no opinion.
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