Irish v. Sunderhaus

Citations

• 122 Cal. 308
• 54 P. 1113
• 1898 Cal. LEXIS 578

Syllabus

<p>Pleading—Presumption of Continuance.—The presumption of continuance is a rule of evidence and not of pleading; but, although a complaint may be found wanting upon special demurrer for absence of an allegation of the continuance of a title averred, yet, after judgment, or upon a general demurrer, the pleading will be sustained.</p> <p>Corporation—Action Against Stockholders—Assignment of Claims of Creditors—Continued Ownership—Sufficiency of Complaint. In an action by an assignee of the claims of certain creditors of a corporation against its stockholders, where the complaint alleged that each of the claims “was duly assigned to the plaintiff before the commencement of the action,” but did not aver that plaintiff was still the owner of the claims, it is subject to special demurrer for want of a direct averment of continued ownership thereof; yet, in the absence of a special demurrer, the complaint shows by fair intendment that the plaintiff was the owner of the claims at the time of the commencement of the action, and the objection, for the want of direct averment, cannot be urged for the first time upon appeal.</p> <p>Id.—Insufficient Defense—Release by Proposed Purchaser of Claims —Agreement with Attorney for Collection.—A release of the stockholders defendant pending the suit by one who had agreed conditionally to purchase the claims of the creditors involved in the action, from an attorney for such creditors, who had represented them as petitioners for an adjudication in insolvency against the corporation, and to whom they had assigned their claims for collection from the assets of the corporation, without sale of their claims to him, or authority to sell them, the conditions of the agreed purchase never having been fulfilled, is an insufficient defense to an action against the stockholders by a direct assignee of such creditors.</p> <p>Id.—Purchase of Assets of Corporation.—The fact that in lieu of such proposed purchase of the claims of the creditors, a purc