Bell Development Co. v. Marshall

California Court of Appeal

Bell Development Co. v. Marshall

169 P. 717, 35 Cal. App. 324, 1917 Cal. App. LEXIS 335

CourtCalifornia Court of Appeal

DecidedNovember 16, 1917

DocketCiv. No. 1958.

StatusPublished

Cited by2 cases

This text of 169 P. 717 (Bell Development Co. v. Marshall) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bell Development Co. v. Marshall, 169 P. 717, 35 Cal. App. 324, 1917 Cal. App. LEXIS 335 (Cal. Ct. App. 1917).

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Opinion

WORKS, J., pro tem.

This is an action for an unpaid subscription to the capital stock of respondent corporation. The appellant interposed a general demurrer to the second amended complaint, the demurrer was overruled, and, the *325 appellant standing on the issue of law and refusing to answer, the respondent had judgment.

The pleading of the respondent alleges an ordinary demand for the payment of the subscription and the appellant’s refusal to comply with the demand; but there is no allegation that the respondent has attempted to follow the provisions of section 331 of the Civil Code and those coming after it. In this state, where the contract of subscription for stock is silent as to the time and manner of payment, calls for unpaid subscriptions are placed in the same class with assessments upon paid-up shares, and the above-mentioned sections of the code provide a complete scheme for the making of collections of each of the two kinds of obligations. Suits cannot be commenced until the procedure there laid down has been exhausted, and in such a suit the complaint must show that the j>rocedure has been followed. (Los Angeles Athletic Club v. Spires, 166 Cal. 173, [135 Pac. 298]; Imperial Land & S. Co. v. Oster, 34 Cal. App. 776, [168 Pac. 1159].)

The judgment is reversed, with directions to the trial court to sustain the demurrer.

Conrey, P. J., and James, J., concurred.

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WORKS, J., pro tem.

This is an action for an unpaid subscription to the capital stock of respondent corporation. The appellant interposed a general demurrer to the second amended complaint, the demurrer was overruled, and, the *325 appellant standing on the issue of law and refusing to answer, the respondent had judgment.

The pleading of the respondent alleges an ordinary demand for the payment of the subscription and the appellant’s refusal to comply with the demand; but there is no allegation that the respondent has attempted to follow the provisions of section 331 of the Civil Code and those coming after it. In this state, where the contract of subscription for stock is silent as to the time and manner of payment, calls for unpaid subscriptions are placed in the same class with assessments upon paid-up shares, and the above-mentioned sections of the code provide a complete scheme for the making of collections of each of the two kinds of obligations. Suits cannot be commenced until the procedure there laid down has been exhausted, and in such a suit the complaint must show that the j>rocedure has been followed. (Los Angeles Athletic Club v. Spires, 166 Cal. 173, [135 Pac. 298]; Imperial Land & S. Co. v. Oster, 34 Cal. App. 776, [168 Pac. 1159].)

The judgment is reversed, with directions to the trial court to sustain the demurrer.

Conrey, P. J., and James, J., concurred.

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169 P. 717, 35 Cal. App. 324, 1917 Cal. App. LEXIS 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-development-co-v-marshall-calctapp-1917.

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