98 Cal.App. 230, Civ. 5571, Noble v. California Prune and Apricot Growers Association

Docket Nº:Civ. 5571
Citation:98 Cal.App. 230, 276 P. 636
Opinion Judge:McLUCAS, Judge.
Party Name:FREDERICK NOBLE et al., Appellants, v. CALIFORNIA PRUNE AND APRICOT GROWERS ASSOCIATION (a Corporation) et al., Respondents
Attorney:Chas. F. Blackstock for Appellants. Sapiro & Hayes for Respondents.
Judge Panel:JUDGES: McLUCAS, J., pro tem. Conrey, P. J., and York, J., concurred. Conrey, P. J., and York, J., concurred.
Case Date:April 12, 1929
Court:California Court of Appeals
 
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Page 230

98 Cal.App. 230

276 P. 636

FREDERICK NOBLE et al., Appellants,

v.

CALIFORNIA PRUNE AND APRICOT GROWERS ASSOCIATION (a Corporation) et al., Respondents

Civ. No. 5571

Court of Appeals of California, Second District, First Division

April 12, 1929

APPEAL from a judgment of the Superior Court of Ventura County. L. D. Jennings, Judge Presiding.

COUNSEL:

Chas. F. Blackstock for Appellants.

Sapiro & Hayes for Respondents.

JUDGES: McLUCAS, J., pro tem. Conrey, P. J., and York, J., concurred.

OPINION

[276 P. 637] McLUCAS, Judge.

Page 231

Plaintiffs appeal from a judgment sustaining defendants' and respondents' demurrer to an amended petition for a peremptory writ of mandamus, without leave to amend.

The amended petition in substance alleges as follows: That petitioners are residents of the county of Ventura, state of California, and owners of apricot orchards and growers of apricots in said county and state; that defendant California Prune and Apricot Growers Association is a nonprofit co-operative association without capital stock, organized under the laws of the state of California, and has its principal place of business at San Jose, California; that the articles of incorporation of said defendant provide, among other things, that the number of directors of said defendant corporation shall be fifteen; that a copy of said articles of incorporation is attached to the petition and made a part thereof; that prior to June 29, 1925, each of the plaintiffs became members of said California Prune and Apricot Growers Association by executing with said association

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a certain membership agreement; that in said membership agreement it is provided substantially as follows: " The undersigned hereby appoint the Voting Board heretofore selected by the members of California Prune and Apricot Growers Association as his attorney to vote in his name, place and stead, for him and representing his interests and the joint interests of all other growers at all annual, regular or special meetings of the members of the association, or otherwise, where a member may be called on to vote in or for the association with the same powers and rights as the undersigned himself would have if personally present from the date of the execution of this proxy to and including July 31, 1928. The Voting Board shall consist of thirty-nine members as provided in the original membership agreement of the California Prune and Apricot Growers Association and article four of the by-laws thereof, representing the various districts as therein set forth. Said board shall annually select the directors of the association. No person may serve as director and as a member of the Voting Board at the same time. The Voting Board shall determine all questions by majority vote. On written demand or vote of sixteen members of the Voting Board any particular problem or problems of the association shall be referred to the full membership of the association. In such event the proxy and power of attorney shall be temporarily suspended; and the entire membership shall be requested to vote thereon. The Voting Board shall thereupon vote as a unit as a majority of the association members so voting shall determine." That a copy of said membership agreement is attached to the petition and made a part thereof. That article eight of the articles of incorporation of said association is as follows: " The association may provide in its by-laws the terms and conditions upon which membership may be transferred or assigned and conditions upon which, and at the time when membership may cease, and the mode, manner and effect of the expulsion of a member, and the method, time and manner of withdrawal, and the right of members to vote by proxy or by mail and any other things in furtherance of, but not in conflict with, these articles." That article four of the by-laws of said association is as follows: " (a) The Voting Board, consisting of thirty-nine members, elected by the members of the voting

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districts, shall be the proxy and attorney of each member of the association, to vote in his name, place and stead, and represent his interests and the joint interest of all other members of the association at all annual, regular or special meetings of the members of the association, or otherwise, where a member of the association may be called upon to act in or for the association, with the same powers and right as the member himself would have if personally present, which said proxy and power of attorney shall remain and continue in force for a full period of seven years from July 31, 1921. The personnel of the Voting Board may change from time to time without affecting or impairing such proxy and power of attorney vested in the Voting Board. The thirty-nine members of the Voting Board shall represent the various districts of the state as follows: (Enumerating districts.) (b) The members of the Voting Board shall be selected by the members in their respective districts. The Voting Board shall have such powers and duties as set forth in the membership agreement and these by-laws . . . . (d) The Voting Board shall determine all questions by majority vote. Twenty members shall constitute a quorum of the Voting Board, but no action except as provided in subdivision (f) of article four of these by-laws, or a vote to adjourn shall be taken by the Voting Board, except by the affirmative vote of at least twenty members . . . . (f) On written demand or vote of sixteen of the Voting Board any particular problem or problems of the association shall be referred to the full membership of the association. In such event, the proxy and power of attorney shall be...

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