Merz

This is an action brought by plaintiff to recover the sum of two thousand five hundred dollars, together with seven per cent interest thereon from November 14, 1911, upon the following contract:

The cause was tried by the court without a jury and defendant had judgment from which plaintiff appeals.

It is alleged in the complaint and found by the court that The Tidewater & Southern Bailroad Company was a duly organized corporation in 1910, and continued so to be until March 11, 1912; that about the sixteenth day of February, 1912, and continuously thereafter to and including Mafich 11, 1912, The Tidewater & Southern Transit Company was a railroad company duly organized; that on or about March 11, 1911, “the said Tide Water & Southern Bailroad Company duly amalgamated and consolidated its capital stock, properties, roads, equipments, adjuncts, franchises, claims, demands, contracts, agreements, obligations, debts, liabilities, *407 and assets of every kind and description with the capital stock . . . liabilities and assets of every kind and description of the said The Tide Water & Southern Transit Company,” and by such amalgamation and consolidation “there was created a new…

Appellant has petitioned for a rehearing in the above-entitled cause after decision rendered by this court affirming the judgment of the lower court.

The material facts involved in the controversy clearly appear in the former opinion, and need not here be reiterated. In that opinion it was said: “It seems to us that treating the indorsement as an indivisible part of the contract, defendant lost none of his rights by not giving the notice contemplated in the indorsement, and that considering all the facts of this ease and the facts upon which the Vance case was decided, the latter case is here applicable.” This language, it is claimed, lends itself to some confusion, and petitioner herein takes the position that by the Vance and Harney eases the option on the back of the duplicate must be regarded as a part of the contract (and those cases so hold), binding upon both parties, though said option was never communicated to petitioner, that thereupon it became the duty of Merz, if he desired to terminate this relationship, to so notify the corporation within the ten months specified in the said option, and that, therefore, the court is in error if it intends to say that Merz need not…

This is an action brought by plaintiff to recover the sum of two thousand five hundred dollars, together with seven per cent interest thereon from November 14, 1911, upon the following contract:

"I hereby agree to pay for such stock the sum of $2500.00, one year note, the full par value thereof, and to make such payments, to said corporation at the time and in the manner following: $2500.00 upon the signing of this agreement, and a further payment of $ _____ on or before the _____ until the full purchase price of said shares shall have been paid, when a certificate of stock shall be issued to purchaser.

"Said corporation, to which I agree to make payments as aforesaid, is hereby authorized to demand, collect and recover the money hereby agreed to be paid.

"Payment must be made direct to The Tide Water and Southern Railroad Company, at its offices, room 4, Physicians' Building, Stockton, California.

"Witness my hand this 14th day of November, 1911.

"Name. G. MERZ. "Street and Number. Lemoore Bank. "City or Town. Lemoore. "State. Cal. "Written by AVERY."

The cause was tried by the court without a jury and defendant had judgment from which plaintiff appeals.

It is alleged in…