OPINION
THE COURT
1. The cause of action, as stated in the complaint, is for goods sold and delivered to the defendant, the California Fruit and Meat Shipping Company, viz: cattle to the amount of $ 5,253.60, with a credit of $ 750, and that said defendant undertook and promised to pay said sum with interest. The plaintiff was the only witness sworn on his behalf: from his testimony it appears that one hundred and thirty-three head of the cattle were delivered to said company, to be by it slaughtered, and the meat sold on commission. The proof does not correspond with the allegation; the evidence does not sustain the finding in that regard.
2. The question of ultra vires, raised by the People's Ice Company, is not tenable. It does not appear that it was not within the scope of the powers of the People's Ice Company to acquire or hold stock of the California Fruit and Meat Shipping Company, under any circumstance, or for any purpose; and it does not appear under what circumstances the stock was acquired or held. (Miners' Ditch Co. v. Zellerbach , 37 Cal. 578.)
3. The books of the company were competent evidence to prove the number of shares which had been subscribed for and issued at the time the alleged indebtedness arose, and who were the shareholders.
4. The articles of incorporation, dated in 1877, would not necessarily show who were the shareholders, or in what amounts respectively, during the time from December, 1878, to February, 1879; therefore, no error is manifest in ruling out the articles.
For the error above noted, the judgment and order are reversed, and the cause is remanded for a new trial.