Schenck v. Bandmann

Belcher, C. C.

The plaintiff commenced this action to recover judgment against the defendants for one thousand dollars liquidated damages, with costs of suit, under the provisions of an act of the legislature of this state, approved April 23, 1880 (Stats. 1880, p. 134). The case was submitted in the court below upon an agreed statement of facts, and judgment was given for plaintiff as prayed for in his complaint. The appeal is from the judgment, and rests on the judgment roll.

The facts of the case, as they were agreed to and found by the court, are as follows: In September, 1880, the Pittsburg Gold Mining Company was a corporation, organized under the laws of this state, for the purpose of mining, and. having its office and principal place of [232]business at the city and county of San Francisco. The capital stock was ten million dollars, divided into one hundred thousand shares, and of this stock, during the said month of September, and until long after the commencement of this action, the plaintiff was the owner and holder of 230 shares.

On the eighteenth day of September, 1880, the defendants were duly elected directors of the said corporation, and from thence until the time of the commencement of this action, and for a long time thereafter, were and remained the duly elected, qualified, and acting directors thereof.- The corporation also had a president and secretary, who were duly elected, qualified, and acting as such.

During the month of October, 1880, work was being prosecuted in-the mine held and owned by the corporation, and ore was being extracted and taken from the mine, and sent to mill for reduction, and bullion was obtained therefrom. The corporation also received and disbursed during the month considerable sums of money, and incurred indebtedness and liabilities -which were existing on the first Monday of November following.

The defendants, as such directors, did not make or post, or cause to be made or posted, on the first Monday of November, 1880, or at any time prior to the nineteenth day of that month, the itemized account or balance-sheet, or any account or balance-sheet whatever, for the previous month of. October, as required by the act of the legislature above referred to.

The defendants, as such directors of the corporation, and the president and secretary thereof, did not, nor did either or any of them, obtain the information necessary to the making of the itemized account or balance-sheet for the month of October, 1880, required by the said act, prior to the fifteenth day of November, 1880; but on the nineteenth day of that month, and the day before the commencement of this action, an itemized account