Leo J. Meyberg Co. v. Board of Trade

O’DONNELL, J. pro tem.* This is an appeal by plaintiff from a judgment rendered in favor of defendant and respondent Board of Trade of San Francisco after respondent’s general demurrer to plaintiff’s second amended complaint was sustained without leave to amend.

The second amended complaint (hereinafter referred to as the complaint) alleges: That the respondent Board of Trade of San Francisco (hereinafter sometimes referred to as the board) is a voluntary association composed of some 376 mercantile dealers; that plaintiff is a member of the board; that the board is supported by monthly dues paid by its members; that the board is maintained “for the purpose of furnishing and which does furnish its members information and service [417]when dealing with affairs of embarrassed or insolvent debtors and also serves said members in the collection of debts other than in the ordinary course of business. In the ease of insolvent or financially embarrassed debtors, it operates, in practice, by forming Creditors Committees, taking assignments to trustees selected by said [board] and which trustees usually are officers of or connected with said [board], furnishing said committees with advice and guidance, with legal service in preparation of necessary legal papers, and conducting all details connected with said assignments and administration of the affairs of said insolvent or financially embarrassed debtors by its Secretary and Secretarial Staff under the management of said Creditors Committee”; that Burton & Rose, a partnership, was engaged in the mercantile business; that on or about February 28, 1955 Burton & Rose became unable to pay its debts as they matured; that on March 4, 1955 the board called a meeting of the creditors of Burton & Rose. Paragraph VIII of the complaint reads as follows: “That at said meeting, and under the supervision and control of said [board] and its officers, a committee was selected from the Creditors of said Burton & Rose to investigate and thereafter to conduct the affairs of said Burton & Rose, the control of its bank account and finances was taken over by said committee, and one member of said committee was appointed and designated to countersign any checks that in the future would be issued by said Burton & Rose.” On March 7, 1955 the board issued and mailed to the creditors of Burton & Rose its Bulletin Number 1 which contained a report of the business transacted at the March 4th meeting and a request that the creditors refrain from pressing their claims. April 12, 1955 Bulletin Number 2 was issued, reading: “Weekly statements of receipts and disbursements have been furnished this office, copies of which have been transmitted to the members of the committee and all cheeks drawn by the debtor company have been and are being countersigned by a member of the committee.” Bulletin Number 3, issued May 17, 1955, reads: “As you have already been advised all checks issued are being countersigned by a member of the committee,” and “The committee will continue to meet as often as necessary to maintain adequate scrutiny of the business.” Bulletin Number 5, issued August 24, 1955, reads: “The members of the committee have been keeping in close touch with the operation of the business through