Loftus v. Fischer

Henshaw, J. These are separate appeals from the judgment, taken within sixty days after its rendition, the evidence being brought up for review by a bill of exceptions. In the case numbered Sacramento 123 the plaintiffs are appellants; in the case numbered. Sacramento 185 defendant Behlow is appellant. As the points presented upon both appeals are identical, they may be considered in one opinion.

There are also appeals from an order of the court made after final judgment directing the receiver to turn over the property to the defendant corporation, the Consolidated Golden Gate and Sulphuret Mining and Development Company.

This litigation has repeatedly been before the court in one or another of the different phases which it has assumed. An extended review of the facts is therefore unnecessary. It will suffice to refer for them to the cases of Behlow v. Fischer, 102 Cal. 208; Fischer v. Superior Court, 98 Cal. 67; Loftus v. Fischer, 106 Cal. 616; 114 Cal. 131; Fischer v. Superior Court, 110 Cal. 129.

The amended complaint, upon which the present appeal comes before this court, pleads the formation and existence of a mining partnership, of which plaintiffs were members; pleads the formation of the defendant corporation, that it was organized to be but the name and mere medium of the partnership in carrying on its business, and that the copartnership should be the real and beneficial owner of the property to be transferred through the name of the corporation; pleads the conveyance to the corporation of the partnership property ¡pleads the issuance by the corporation to the partners of shares of its stock, which were only to represent the interests of the partners respectively in the partnership; pleads the continuance of the partnership in this form; avers an interest in the partnership upon the part of certain defendants, and in particular upon the part of defendants Long and Behlow; sets forth certain acts and threatened acts of defendant Fischer imperiling the interests of the partners and of the partnership business, in fraud [131]of their rights; and asks that an accounting be had, the respective interests of the partners determined, and the affairs of the partnership closed. There is also an allegation that Fischer purchased from the copartnership 19,200 shares, and caused said 19,200 shares to be issued in the name of Charles Behlow, and that these shares were thereafter transferred by him to Fischer.

Defendant Behlow answered, making no denial of any of the matters set forth in the complaint, saving that he denied that the 19,200 shares issued to him had been transferred by him to Fischer, “ except by reason of a fraud practiced and perpetrated upon him by said Fischer,” and then proceeded at great length to set forth the facts and circumstances of the alleged fraud. These allegations in brief charge Fischer with obtaining by fraud 22,000 shares of the stock, the rightful property of Behlow, and an additional 5,000 shares of stock from Long, to whose interest it is averred Behlow had succeeded. The prayer is that the court decree that Behlow is and always has been the owner of an interest in the partnership to the extent of 5,000 shares, and that the court decree that the 22,000 shares were obtained by Fischer from him through fraud and fraudulent representations, that Behlow be declared to be the rightful owner thereof, and of the interest in the copartnership represented thereby, that Fischer be required to assign and deliver the same to him, and to account to him for all moneys received as dividends thereon, and that Behlow’s total interest in said copartnership be decreed to be represented by 31,800 shares of the capital stock. The prayer joins that of the complaint in asking for an accounting, a dissolution, and the appointment of a receiver.