The record-union., 1896-03-13
SUPREME COURT DECISIONS.
SYLLABI.
(No 19,561-In Bank-F'iled March IL,
1S96)

SYLLABI
(No. 19,561-In Bank.-F'iled March IL,
1860
A. L. Knox, respondent; J. p. Rain
bow, J. Jasper, A. G. Mason, John Jud-
son and w Wetzell, the Board of Super
visors of San Diego County, appellants.
Review of denial of application for
license. Reversed.
If an official or board refuse to per-
form duty specially enjoined by law,
it is absurd to declare such refusal
void. Therefore, the remedy cannot be
by writ of certiorari.
(S. F., No. 309.-Department No. l.
Filed March IL, 1860
Hibernia Savings and Loan Society,
respondent; Anna A. Lewis ct al, de-
PENDANTS; j. D. Boyer, appellant. Fore
closure Appeal from order refusing to
vacate judgment dismissed. Motion
to dismiss appeal from order granting
writ of assistance denied.
A document waving service of no.
tice of appeal is ineffective unless fol-
lowed by some other act equivalent to
an appearance by which the adverse
party would be bound by the judgment
of the court.
(No. 9,592.-Departmen No. Filled
March IL, 1860
Joseph Young, respondent; Home Mu-
tual Insurance Company, appellant.
Recovery upon policy OF insurance.
Affirmed.
When an insurance company agreed
to insure stock of merchandise .'such
&c ic 1Ixy l-ar In 1fr.xy cfO .,
it was presumed to have known the
character of the merchandise which is
usually kept in country stores. and that,
for instance, gasoline was one of these
articles, and, consequently, that its
policy covered all such merchandise.
A court has no judicial knowledge of
the character of merchandise which is
usually kept in country stores, there
fore it is competent to offer evidence
OH that point in such a case for the
purpose of enabling it when interpret
ing the language of the policy to under
stand the matter to which it related
and the circumstances under which it
was made.
If there be any repugnance between
a written phrase and printed clause
in a contract, the former controls the
latter as being the more deliberate ex-
preston of the contracting parties.
The rule that one who signs an in
strument which contains terms Of OBJ
legation upon himself is not absolved
from such obligation by showing that
he signed the instrument without read
ing it, has no application in case
where the instrument signed contains
no words of obligation, and the clause
invoked against the signer does not
purport to be a statement by hhn or in
answer to a question put to him.
Is. F., No. 39S-Department One
Filed March IL, 1860
c. A. Storke, respondent; Yda Adds
Storke, appellant Divorce. Appeal
dismissed.
A defendant in an action cannot,
after having had the judgment set
aside upon his or her own motion, treat
the same judgment as valid for the pur-
pose of having it reviewed upon an ap-
peal.
Is. f, No. 81. Department One. Filed
March II, 1860
Durcanscn, respondent; Walton ct
al, appellants. Purchasers suit for
return of money paid. Affirmed.
The provision in an agreement to pur-
chase that the money shall be paid to
both of two vendors authorizes a pay
ment to either, and the notice by one
vendor to the purchasers that they
shall pay the money to him alone is in
reputation of this provision.
q. A, No. r. Department Two. Filed
March IL, 1860
National Carriage Manufacturing
Company, appellant; Story and Isham
Company and Adella B. Story, respond
ents. Recovery of unpaid subscription
upon stock to satisfy judgment. Re
versed.
Shareholders in a corporation may by
selling their stock be relieved from all
liability save such as the statute or the
charter may provide shall continue.
This, however, includes the liability for
unpaid subscription for stock.
After a corporation has been insol-
vent and the stockholder knows this,
and especially if the corporation has
ceased to do business, a shareholder
cannot transfer his stock to an insol-
vent, or to an irresponsible person, so
as to relieve himself from liability.
G. A, No. 13. Department No. ..
Filed March IL, 1860
Andrew ]. O'Connor, respondent; o.
S. Witherby, appellant. Assessment by
receiver of insolvent bank. Affirmed.
The Comptroller may enforce the in
dividual liability Of the stockholders,
if necessary to pay the debts of bank,
and in an action to recover upon as
sessment the mere averment that the
Comptroller has made such assessment
and had directed the action to be
brought is a. sufficient averment-as
against a general demurrer at least
that he had determined the necessity
of such action.
The action of the Comptroller cannot
be controverted in a suit against q
stockholder. 1t is conclusive upon him.
An instruction by the court to the
jury to find for the plaintiff in an ac-
ton cannot be upheld where there is
conflicting evidence as to material facts
which the jury had the right to pass on;
but where there is no substantial con-
fict of evidence as to the facts deter
minative of the case, or such facts are
admitted, the judgment will not be re-
versed for such an instruction.