Aulbach v. Dahler

• Decision Date: 21 January 1896
• Citation: 4 Idaho 654,43 P. 322
• Parties: AULBACH v. DAHLER
• Court: Idaho Supreme Court

43 P. 322

4 Idaho 654

AULBACH v. DAHLER

Supreme Court of Idaho

January 21, 1896

PLEADING-CAUSES OF ACTION SEPARATELY STATED.-Under that provision of section 4169 which requires each cause of action to be separately stated it is not necessary to rewrite in each subsequent count the preliminary averments of the first count, but it is sufficient if such allegations be referred to by apt and express words making such allegations a part of each subsequent count.

SAME-SECTION 2609 OF THE REVISED STATUTES CONSTRUED.-Held, that the complaint states a cause of action against appellant and alleges his liability as a stockholder under the provisions of section 2609 of the Revised Statutes.

SAME-DEMURRER-WAIVER.-If the complaint is ambiguous, unintelligible, or uncertain, and the defendant fails to demur thereto on these grounds, he waives them.

ALLEGATIONS AND PROOFS.-If, during the trial of a cause, the defendant is misled to his prejudice because of the variance between the allegations of the complaint and the proofs, he should then and there notify the court of that fact, and ask for proper relief. If he does not, he will not be permitted to first raise said question on motion for a new trial, or on appeal.

TRANSFER OF STOCK-SECTION 2611 OF THE REVISED STATUTES.-A transfer of stock under the provisions of section 2611 of the Revised Statutes is not valid, except between the parties thereto until the same is entered upon the books of the corporation in manner and form as required by said section.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Judgment affirmed Costs of appeal awarded to respondent.

Charles W. O'Neil, for Appellant.

W. B Heyburn and E. M. Heyburn, for Respondent.

No brief filed on rehearing of motion to dismiss.

SULLIVAN J.

OPINION

SULLIVAN, J.

This action was brought by Aulbach, the respondent, against the Bank of Murray (a corporation), Charles Hussey and Charles L Dahler, to recover about $ 3,000, alleged to be due on certain certificates of deposit issued by said bank to divers persons, and assigned to said Aulbach. The amended complaint alleges that the Bank of Murray was and is a corporation organized under the laws of Idaho and began doing business at the town of Murray, in Shoshone county, about August 9, 1884; that defendant Charles L. Dahler is, and during the existence of said corporation was, the president of, and a stockholder of, said corporation, and as such stockholder, at all times mentioned in the complaint, was the owner of two hundred and fifty shares of the capital stock of said corporation, which was one-half of its capital stock, and that said Dahler is and was a citizen and resident of the state of Montana; that said two hundred and fifty shares of stock were issued and delivered to said Dahler, and that during all the time mentioned in the complaint he owned and held the same, and received profits and dividends earned by and accruing to his interest in said bank, but that he did not pay the full price for said shares, the par value of which was $ 25,000; that he had paid only $ 10,000 thereon, and that there remained unpaid on said shares the sum of $ 15,000; that said Charles Hussey was the owner of two hundred and forty-seven shares of said stock; that there is now due and owing from said Hussey to said bank, on said stock, the sum of $ 24,700. In paragraph 3 of said amended complaint, it is alleged that the capital stock of said bank consisted of five hundred shares, of the par value of $ 100 per share, and on the first day of September, 1884, all of the shares aforesaid were subscribed for and issued to the following named persons, viz.: To Warren Hussey, one share; to Charles L. Dahler, two hundred and fifty shares; to C. D. Porter, one share; to Charles Hussey, two hundred and forty-seven shares; to Albert Allen, one share; that said stock so issued has continued to be held and owned by said subscribers, and that no part of the price of the stock issued to the said Warren Hussey, Charles Hussey, C. D. Porter or Albert Allen had ever been paid to said corporation. Paragraph 5 alleges the insolvency of said bank; that it has closed its doors, and has no property or assets with which to pay the claims of its creditors. Paragraph 6 alleges that on June 10, 1890, the said bank made, issued and delivered its certificate of deposit to one William Foster for the sum of $ 120, payable in current funds; that said Foster duly indorsed said certificate to the plaintiff; that thereafter said certificate was properly indorsed and presented to said bank for payment, and payment thereof refused; that there is now due on said certificate the sum of $ 120, with interest thereon at the rate of ten per cent per annum from the twentieth day of December, 1890. There are twenty-six additional causes of action set forth in said amended complaint, each of which is substantially the same as the one above set forth, except as to date of certificate of deposit, name of depositor, and amount deposited, and the concluding paragraph, which is changed to meet the facts of each case. Service of summons was made by publication. The bank and Charles Hussey failed to appear, and default was entered against them. Defendant Dahler appeared, and demurred to the complaint. The demurrer was overruled, and defendant Dahler thereupon answered, the substance of which answer is that he did subscribe for said two hundred and fifty shares of stock, and that the same were issued to him, and that he paid therefor the full price, at its par value, for each and every share of said stock; that he became president of said bank, and a stockholder therein, about April, 1885, and about April, 1887, said two hundred and fifty shares of stock were issued to him; that about December 1, 1887, for a valuable consideration, he sold all of the interest which he had then in said bank, and transferred and assigned to the purchasers all of said stock, and that since that date he had had no interest in said bank, nor been its president, nor in any way connected with it, nor owned or controlled any shares of stock therein; that since about April 1, 1887, each and every share of the capital stock of said bank, to the number of five hundred shares, of the par value of one hundred dollars each, was fully paid to said corporation; and that all of the...