Wolf v. St. Louis Independent Water Co.

         1. Wheeler was an ostensible partner, and interested in the event of the suit. (Mokelumne Hill Can. Co. v. Woodbury, 14 Cal.; Collyer on Part., sec. 4, note 3; Id. secs. 86, 384, note 1, sec. 385-6.)

         2. He was stockholder, and not trustee. It was necessary that he have the former character to hold the office of secretary.

         3. Plaintiff having done nothing to produce the injury, was not obliged to do anything to prevent it--at least, not to tear off a board and commit a trespass.

         JUDGES: Cope, J., delivered the opinion of the Court. Field, C. J., concurring.

         OPINION

         COPE, Judge

         The witness Wheeler was incompetent, and was properly excluded. He permitted himself to be represented on the books of the company as a stockholder, and held the office of secretary, to which no person but a stockholder was eligible. Under these circumstances, every person dealing with the company had a right to suppose that he was a member, and he could not escape responsibility for the debts of the company, by showing that the stock standing in his name was held in trust for another. The trust, if any, was only implied, and we think the seventeenth section of the Corporation Act of 1853 was intended to apply only to the trustee of an express trust.

         There is nothing in the point, that the plaintiffs might, by ordinary diligence, have avoided the injury of which they complain. They could have done so only by the commission of a trespass, and surely they are not to be denied redress because they have chosen to appeal to the law, rather than violate it.

         Judgment affirmed.