Opinion
Department Two
Appeal from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.
COUNSEL:
It is essential to the statement of a cause of action that the complaint state the portion which the stock owned by the defendant at the time the debt sued for was incurred bears to the whole subscribed stock at the same time, or that it state facts from which such proportion can be deduced. (Bidwell v. Babcock , 87 Cal. 29; Const., art. XII, sec. 3; Civ. Code, sec. 322; French v. Teschemaker , 24 Cal. 518, 541.) The general demurrer was sufficient to raise the question. The point that the complaint does not state facts sufficient to constitute a cause of action may be raised at any stage of the proceedings. (Code Civ. Proc., sec. 434; Barron v. Frink , 30 Cal. 486; Du Brutz v. Jessup , 70 Cal. 75; Richards v. Travelers' Ins. Co ., 80 Cal. 505.)
Rodgers & Paterson, for Appellants.
Wall J. Tuska, for Respondent.
The complaint is sufficient. The objection made by appellants cannot be reached by general demurrer.
JUDGES: Henshaw, J. McFarland, J., and Temple, J., concurred.
OPINION
HENSHAW, Judge
The trial court overruled defendant's general demurrer to plaintiff's complaint. Defendant refusing to answer, judgment against him was entered. From this judgment he appeals.
The plaintiff, a creditor of the S. S. Construction Company, a corporation, sought to charge defendant as a stockholder thereof for his proportionate share of the debt. The complaint averred the amount of capital stock of the defendant corporation, and the number of shares into which it was divided. It likewise averred ownership in defendant of a certain specified number of shares of this stock during the period within which the liability was created. But it did no more than this. It did not allege, nor can it be determined from the complaint, what the total number of the subscribed shares actually was, nor what proportion the holding of this defendant bore to the total amount of subscribed stock. As the number of individual stockholders' shares is to the whole number of subscribed shares, so is his proportion of the debt to the total amount of the debt. Unless, therefore, these three known factors are pleaded, namely, the number of the stockholders' shares, the total of the subscribed shares, and the amount of the debt, it is impossible from the complaint to determine what amount of liability is sought to be charged against a stockholder.
This is so plain that it is conceded by respondent, but he insists that the admitted defect in the complaint is one which cannot be reached by general demurrer, but is subject to attack by special demurrer only.
The precise question arose in Bidwell v. Babcock , 87 Cal. 29, where this court said that the averment of these elements is essential to the statement of a cause of action.
The judgment is reversed and the cause remanded with directions to the trial court to sustain the defendant's demurrer.