California Steam Navigation Co. v. Wright

Citations

• 8 Cal. 585

Syllabus

<p>The want of capacity in a plaintiff to sue should be specifically set up in the answer. The general issue is not sufficient.</p> <p>Where the defendant being the owner, in whole or in part, of certain steamers, in con- . sideration of a sum of money paid to him, covenanted that he would not run, or suffer 1 to be run, or employed, those steamers on certain waters of the State : Held, that he j was not released from his covenant by a sale of the steamers, or of his interest | therein.</p> <p>A voluntary promise by the holder of defendant’s agreement, that he would not assign it, was not binding; and where the contract was in fact made for the benefit of a company in which the obligee held stock, with knowledge of that fact on the part of the defendant, such promise was in fraud of the company’s rights, and the defendant could not avail himself of it.</p> <p>¡Nor if the fact is that defendant was kept in ignorance by the obligee of the contract, that he was acting for the company, can the defendant avail himself of the fact as a defence, no fraud being alleged, while he retains the consideration paid for his contract. He cannot retain the consideration on the ground of fraud, and resist the payment of the penalty of an infraction of his contract on the same ground.</p>