Auburn Opera House & Pavilion Ass'n v. Hill

Van Fleet, J. This is a second appeal. On the former appeal a judgment in favor of the defendant was reversed. (Auburn etc. Assn. v. Hill, 32 Pac. Rep. 587.) Judgment was in favor of plaintiff at the second trial, and defendant now appeals therefrom and from an order denying his motion for a new trial.

1. There is nothing substantial in the claim that certain of the findings are not sustained by the evidence. Of the material facts in the case—that defendant signed the prospectus, which is the basis of the plaintiff’s action; that demand was made upon him for the amount of his subscription; and that he has not paid it or any part of it—the first and last are not denied, while the evidence is uncontradicted in support of the second.

The other matters about which there is some controversy in the briefs—whether the evidence shows that defendant participated in all the meetings of the board of directors of plaintiff down to the time of his resignation therefrom; whether he consented to the purchase [384]of the Lardner lot; and as to the manner in which the proposed amount of the capital stock of plaintiff was increased from twenty thousand dollars to thirty thousand dollars, and others not necessary to enumerate— are things wholly immaterial to the merits of this action, had no proper place in the pleadings, and whether correctly found upon or not can make no difference to the judgment.

2. The defendant’s contention that the prospectus did not constitute a contract, and that he cannot be held liable thereon as such; that his only liability is as a stockholder of the corporation, to be proceeded against by the method of levying and collecting assessments provided by the Civil Code, is concluded by the judgment of this court on the former appeal, where it is said: “Under defendant’s contract of subscription for the stock of plaintiff as contained in the prospectus signed by defendant, and upon the facts alleged in the complaint as to plaintiff’s calls or demands for the amount agreed to be paid for such subscribed stock, the plaintiff is entitled to maintain this action.”

The pleadings remaining unchanged, the construction given them in the former opinion of this court becomes the law of the case.

The other points demand no special notice. We have examined them and are satisfied they involve no material error.

Judgment and order affirmed.