SHENK, J.
This is an appeal from a judgment for the defendant in an action for money had and received. Plaintiff is the assignee of the claims of thirty-eight persons who were formerly holders of investment certificates issued by the defendant, a corporation organized and existing under the laws of this state relating to building and loan associations.
The action was commenced on December 1, 1937. The trial was not completed until the latter part of 1939. In the meantime, on March 4, 1939, the business and assets of the defendant were seized by the Building and Loan Commissioner pur[334] suant to the powers conferred upon him by the Building and Loan Act (Stats. 1931, pp. 483-539; Peering’s Gen. Laws, Act 986). The present action was continued against the commissioner without further formality of pleading. The order of seizure was affirmed in a separate proceeding brought for the purpose of testing its validity. (Pacific States Sav. & L. Co. v. Hise, 25 Cal.2d 822 [155 P.2d 809].)
The complaint herein is in the form of a series of common counts for money had and received, each setting forth a different claim and its assignment to the plaintiff. The total of the claims is $35,797.60, representing the difference between the face value of the certificates and the amount theretofore received for them when sold by the plaintiff’s assignors at a discount.
The defendant answered denying the indebtedness and alleging, among other things, that the sums referred to in the several counts and sought to be recovered constitute a part of certain amounts which were paid by the plaintiff’s predecessors in interest to the defendant in consideration of the issuance to -them of investment certificates pursuant to. the laws of the state relating to building and loan associations; that those certificates were duly issued to and accepted by plaintiff’s predecessors in interest who thereafter and prior to the commencement of this action sold, assigned and transferred them together with all of their rights thereunder; that prior to the commencement of this action said certificates were acquired by Pacific States Auxiliary Corporation which, in turn, sold, assigned and delivered them to the defendant and that they were thereupon cancelled by the defendant; that said certificates were thereby extinguished and that all rights and liabilities thereunder on the part of the defendant were released and terminated. The answer also alleged that in reliance upon the assignments by plaintiff’s predecessors and similar assignments by other holders of investment certificates, defendant. made transfers of certain of its properties and assets, entered into obligations and otherwise changed' its financial position with the result that plaintiff is estopped 'from asserting the claims here sued on. '
The caiise was tried on a stipulation of facts and additional evidence introduced at the hearings. At the conclusion of the trial the court found in accordance with the foregoing [335] allegations of the answer and gave judgment for the defendant.
Examination of the record satisfies "us that the evidence does not support the charge made on this appeal that defendant had engaged in a “deliberate and illegal scheme . . . to acquire its invéstment certificates at a discount” at a time when it assertedly was insolvent. The stipulatiop of facts does not substantiate the charge. In addition to other matters, it recites “ That if. said assignors were called as witnesses they would testify that at a date or dates after February 1, 1934, and prior to the dates of the execution of the respective alleged assignments, they called, at the office of the Pacific States Savings and Loan Company, and were then and there informed by said company that no funds could at that time be withdrawn'under their certificates respectively.
“Said assignors sold their certificates because they needed the money and were afraid of losing their investments if they did not sell. .
“Said assignors were further informed that if‘they wished to sell their certificates they could do so, and it was stated that they could only be sold at a discount.”
The contention of the plaintiff that this stipulation of facts requires a finding that plaintiff’s assignors “were the victims of coercion” when they sold their certificates at a discount, cannot be sustained. It must be assumed' that the stipulation states the truth, namely, that plaintiff’s assignors “were afraid of losing their, investments,”, that “they needed money,” and that they sold them in order to.obtain the needed money even though it was necessary to sell “at a discount.” These facts do not compel a finding of fraud and there is no other evidence in the record indicating that, plaintiff’s assignors were coerced or induced through false and fraudulent representations made to them by defendant or its agents to surrender their certificates for less than face value. , The statement that the certificates “could only be sole! at a discount” was true. Widespread economic conditions had depressed values generally. The information given that “no funds could at that time be withdrawn under their certificates” was in conformity with the facts and the provisions of the Building and Loan Act. The amendments of 1933 and 1935 (Stats. 1933, eh. 431; Stats. 1935, ch. 163,), which applied to the emergency period of the depression years, declared that [336] the right of certificate holders to withdraw and receive payment was secondary to the duty of the association to provide a reasonable reserve for the payment of taxes, insurance, repairs, etc., provided, however, that an association “on. notice” should not pay any dividends on its stock. There is no evidence that dividends were paid, or that distribution of profits was made to stockholders by the defendant.
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SHENK, J.
This is an appeal from a judgment for the defendant in an action for money had and received. Plaintiff is the assignee of the claims of thirty-eight persons who were formerly holders of investment certificates issued by the defendant, a corporation organized and existing under the laws of this state relating to building and loan associations.
The action was commenced on December 1, 1937. The trial was not completed until the latter part of 1939. In the meantime, on March 4, 1939, the business and assets of the defendant were seized by the Building and Loan Commissioner pur[334] suant to the powers conferred upon him by the Building and Loan Act (Stats. 1931, pp. 483-539; Peering’s Gen. Laws, Act 986). The present action was continued against the commissioner without further formality of pleading. The order of seizure was affirmed in a separate proceeding brought for the purpose of testing its validity. (Pacific States Sav. & L. Co. v. Hise, 25 Cal.2d 822 [155 P.2d 809].)
The complaint herein is in the form of a series of common counts for money had and received, each setting forth a different claim and its assignment to the plaintiff. The total of the claims is $35,797.60, representing the difference between the face value of the certificates and the amount theretofore received for them when sold by the plaintiff’s assignors at a discount.
The defendant answered denying the indebtedness and alleging, among other things, that the sums referred to in the several counts and sought to be recovered constitute a part of certain amounts which were paid by the plaintiff’s predecessors in interest to the defendant in consideration of the issuance to -them of investment certificates pursuant to. the laws of the state relating to building and loan associations; that those certificates were duly issued to and accepted by plaintiff’s predecessors in interest who thereafter and prior to the commencement of this action sold, assigned and transferred them together with all of their rights thereunder; that prior to the commencement of this action said certificates were acquired by Pacific States Auxiliary Corporation which, in turn, sold, assigned and delivered them to the defendant and that they were thereupon cancelled by the defendant; that said certificates were thereby extinguished and that all rights and liabilities thereunder on the part of the defendant were released and terminated. The answer also alleged that in reliance upon the assignments by plaintiff’s predecessors and similar assignments by other holders of investment certificates, defendant. made transfers of certain of its properties and assets, entered into obligations and otherwise changed' its financial position with the result that plaintiff is estopped 'from asserting the claims here sued on. '
The caiise was tried on a stipulation of facts and additional evidence introduced at the hearings. At the conclusion of the trial the court found in accordance with the foregoing [335] allegations of the answer and gave judgment for the defendant.
Examination of the record satisfies "us that the evidence does not support the charge made on this appeal that defendant had engaged in a “deliberate and illegal scheme . . . to acquire its invéstment certificates at a discount” at a time when it assertedly was insolvent. The stipulatiop of facts does not substantiate the charge. In addition to other matters, it recites “ That if. said assignors were called as witnesses they would testify that at a date or dates after February 1, 1934, and prior to the dates of the execution of the respective alleged assignments, they called, at the office of the Pacific States Savings and Loan Company, and were then and there informed by said company that no funds could at that time be withdrawn'under their certificates respectively.
“Said assignors sold their certificates because they needed the money and were afraid of losing their investments if they did not sell. .
“Said assignors were further informed that if‘they wished to sell their certificates they could do so, and it was stated that they could only be sold at a discount.”
The contention of the plaintiff that this stipulation of facts requires a finding that plaintiff’s assignors “were the victims of coercion” when they sold their certificates at a discount, cannot be sustained. It must be assumed' that the stipulation states the truth, namely, that plaintiff’s assignors “were afraid of losing their, investments,”, that “they needed money,” and that they sold them in order to.obtain the needed money even though it was necessary to sell “at a discount.” These facts do not compel a finding of fraud and there is no other evidence in the record indicating that, plaintiff’s assignors were coerced or induced through false and fraudulent representations made to them by defendant or its agents to surrender their certificates for less than face value. , The statement that the certificates “could only be sole! at a discount” was true. Widespread economic conditions had depressed values generally. The information given that “no funds could at that time be withdrawn under their certificates” was in conformity with the facts and the provisions of the Building and Loan Act. The amendments of 1933 and 1935 (Stats. 1933, eh. 431; Stats. 1935, ch. 163,), which applied to the emergency period of the depression years, declared that [336] the right of certificate holders to withdraw and receive payment was secondary to the duty of the association to provide a reasonable reserve for the payment of taxes, insurance, repairs, etc., provided, however, that an association “on. notice” should not pay any dividends on its stock. There is no evidence that dividends were paid, or that distribution of profits was made to stockholders by the defendant.
The record fails to disclose evidence of fraud, either actual or constructive, to support plaintiff’s charge. The record reflects the following: Prior to April, 1933, there had been much trafficking in certificates on the part of numerous brokers and speculators and to such an extent as to develop a so-called “racket” in those activities. Thereafter the defendant furnished names of some of its certificate holders to responsible brokers for the reason that prior to that time it was apparent that the names of many of its investors were in the possession of unlisted brokers, and an abuse in dealing with their certificates had become so pronounced that the defendant decided that it would be preferable, both for the company and its investors, to have as an acknowledged and approved dealer in certificates a brokerage firm of unquestioned integrity and responsibility. Accordingly, at that time, about April, 1933, the defendant furnished to Schwabacher & Company, members of the New York Stock Exchange, the names of such certificate holders as had frequently been disturbing their accounts or pressing demands for funds. The defendant approved a letter which Schwabacher & Company sent to this special list of certificate holders in which that firm expressly stated that it believed that the Pacific States Savings was a well-managed institution and that its certificates were intrinsically worth more than that firm was offering on an immediate cash conversion basis. In February, 1934, after the suspension of withdrawals had been announced, the Pacific States Auxiliary Corporation, a subsidiary of the defendant, applied to the Commissioner of Corporations for a broker’s license to deal exclusively in outstanding investment certificates of the defendant. In the application, the Auxiliary Corporation expressly stipulated that it would not take any profit in any of its dealings in such certificates, and there is no evidence indicating that it did not fully and strictly live up to this agreement. After it obtained its broker’s license, the Auxiliary Corporation furnished names of investors to a [337] selected list of brokers pledged to pay investors no less than the current price paid directly by the Auxiliary Corporation. Those brokers pledged themselves to the effect that in any case when a certificate was traded for any other security the latter would be of a comparable market value, and that in no ease would they make any misrepresentations or spread any false rumors concerning the defendant.
In attempted support of the charge that the defendant was engaged in a scheme to defraud its certificate holders, plaintiff refers to certain evidence and findings in the above mentioned proceeding of Pacific States Sav. & L. Co. v. Hise, 25 Cal.2d 822 [155 P.2d 809], wherein the seizure of the defendant company by the Building and Loan Commissioner was challenged. In affirming the order of seizure in that proceeding it was not necessary to consider or determine the sufficiency of that evidence or the propriety of the findings based thereon. The seizure was upheld on other and unrelated grounds. The findings and the evidence in that proceeding are not, under familiar rules on appeal, of such compelling force as to warrant a reversal in this case. The evidence in this case is sufficient to support the findings and conclusions of the trial court that the sale of the certificates by plaintiff’s assignors, followed by the cancellation of the same by the defendant corporation, was not fraudulent and that no liability in damages or otherwise accrued to the defendant thereunder. This conclusion makes it unnecessary to express an opinion upon the merits of the defense of estoppel or of other contentions of the defendant.
The judgment is affirmed.
Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.
Gibson, C. J., did not participate herein.