Davis v. Rock Creek L. F. & M. Co.

Citations

• 55 Cal. 359

Syllabus

<p>Default — Discretion of Court.—Held, upon the facts of the case, that there was no abuse of discretion, on the part of the Court below, in setting aside a default.</p> <p>Contract of Corporation — Power — Trustee ■—Evidence—Fiduciary — Constructive Fraud.—By a unanimous vote of the trustees of the corporation defendant, it was resolved to borrow a certain sum of money, and to execute a mortgage upon the property of the corporation to secure tho payment of the same—the money to be applied to the payment of the debts of tho corporation—and to that end A. Wolf, president, and F., the secretary, were authorized to execute a mortgage in the name of the corporation. A. Wolf did not borrow any money, but he had purchased the debts of tho corporation and assigned them to A. Wolf & Co., (of which firm ho was a member) and the notes and mortgage were executed to A. Wolf & Co. to secure the said indebtedness. In an action to foreclose the mortgage brought by tho assignee of tho mortgagees, held, first, that the resolution did not authorize tho execution of the notes and mortgage for any such purpose; and secondly, and apart from this consideration, tho law would not permit one who acts in a fiduciary capacity 1hus to deal with himself in his individual capacity; and held, accordingly, that the Court below did not err in excluding the notes and mortgage from the evidence.</p> <p>Id.—Ratification.— IZeld, upon the facts of the case, that there was no ratification of the notes and mortgage.</p>