[4] The answer to this by appellant is "that Mrs. Parten was indebted to Olsen is not disputed, but there is absolutely no evidence in the record as to the time such indebtedness arose. Counsel complained that appellant did not instruct them as to how to prove their case or as to the facts that were necessary to establish their contention. We submit, however, that the duty of proving his case devolved upon respondent, and if Mrs. Parten were in fact indebted to Olsen prior to the conveyance from Mrs. Parten to Knight, respondent should have supplied such evidence in a clear and unequivocal manner. Such evidence was a condition precedent to his right to attack the conveyance from Mrs. Parten to Knight, and without a clear and satisfactory showing on the point the case for respondent must naturally fall." Respondent probably deserves the criticism for his carelessness, and the importance of the point is quite apparent. It is not, however, for us to require that the showing be "clear and satisfactory." It is sufficient if there be substantial evidence of the fact. We feel some doubt as to that-the evidence being meager-but we are satisfied that under the circumstances the cause should not be reversed for that reason. Respondent has virtually said in this court that the fact was never questioned in the court below, that appellant made no such claim therein, and that if there had been any controversy about it, abundant evidence could and would have been furnished to prove it. These statements are not denied by appellant and they must be deemed admitted. The counsel are honorable officers of this court, and we attach the same weight and significance to their statements and admissions as though they were testifying as witnesses. The status of the matter may be thus presented: Appellant admits that respondent was actually a creditor; that he never questioned it in the court below; that if he had it would have been amply proven, but, since the record does not contain sufficient evidence of the fact, the cause should be reversed and additional cost incurred in proving a fact that never has been really disputed and concerning which there is no possible doubt. We do not think the practical administration of justice. would be subserved by such a course. The rules of pleading and practice are designed primarily to promote the righteous determination of a judicial proceeding, and in their application we must not lose sight of that purpose. If appellant had stipulated in this court that Olsen was a creditor, it would not be seriously contended that the cause. should be reversed in order that the fact might be proven in the court below. His acquiescence in the statement of respondent is equivalent to such stipulation. The judgment is affirmed. Hart, J., and Chipman, P. J., concurred. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 18, 1919. All the Justices concurred. [Civ. No. 1828. Third Appellate District.-July 23, 1919.] C. L. SCHAAD, Respondent, v. H. J. BARCELOUX, Appellant. [1] PLEADING-FILING OF AMENDED COMPLAINT LEAVE OF COURT-APPEAL-RECORD-PRESUMPTION.-Where the amended complaint contained in the record on appeal recites that it was filed after leave of court first had and obtained, and there is nothing in the record to show the contrary, it must be presumed in favor of the order of the trial court overruling a motion to strike such amended complaint from the files on the ground that leave of court was not obtained, that it was justified by the facts. [2] ID. CHANGE OF CAUSE OF ACTION - DIFFERENT REMEDY. - In an action by the owner of corporate stock which had been delivered to the defendant as trustee under a pooling agreement, the cause of action set forth in the original complaint seeking to recover the value of the shares which it is alleged the defendant received and converted to his own use is not changed, but only the remedy, by the filing of an amended complaint wherein the plaintiff seeks to recover the shares or their value. [3] APPEAL ALTERNATIVE REMEDY - BRIEFS. — Where an appeal is taken under the alternative method, both parties must print in their briefs, or in a supplement thereto, such portions of the record as they desire to call to the attention of the court. It is not sufficient to call attention to certain folios of the transcript. 42 Cal. App.-22 [4] ID. - DENIAL OF NONSUIT SUBSEQUENT INTRODUCTION OF EVIDENCE-VERDICT-ERROR CURED.-If the court through error denies a motion for a nonsuit and thereafter the defendant takes up the matter of its defense and introduces evidence, oral and documentary, upon the merits of the case, which is followed by other evidence of like character introduced by the plaintiff, and the general verdict or special findings of the jury are not attacked, this must be taken as a concession that the evidence subsequently admitted supplied the deficiency. [5] CORPORATIONS POOLING AGREEMENT - CONVERSION OF STOCK BY TRUSTEE-ACTION TO RECOVER STOCK OR ITS VALUE.-Where corporate stock was delivered to a trustee under a pooling agreement for a given term of years and he converted the same to his Own use, and thereafter, but prior to the expiration of such term, the property of the corporation was sold to another corporation and the proper proportionate share of the proceeds distributed to such trustee, the bringing of an action against him to recover the shares of stock or their value constituted neither a violation of the pooling agreement nor a proceeding to compel the distribution of the assets of the corporation before its dissolution or the winding up of its affairs, contrary to the provisions of section 309 of the Civil Code, such trustee having attempted to justify his conduct by the contention that the plaintiff did not own such stock, but that it was owned by a third person to whom it had been delivered. - In [6] ID. EVIDENCE STATEMENTS BY THIRD PARTY ADMISSIBLE. APPEAL from a judgment of the Superior Court of Glenn County. Wm. M. Finch, Judge. Affirmed. The facts are stated in the opinion of the court. C. L. Donohoe and W. T. Belieu for Appellant. Frank Freeman and George R. Freeman for Respondent. CHIPMAN, P. J.-The original complaint in the action had for its object to recover the value of certain five thou 5. Validity of agreement to control the voting power of corporate stock, notes, 56 Am. St. Rep. 140; 15 L. R. A. 683; 16 L. R. A. (N. S.) 1136; 31 L. R. A. (N. S.) 1186. sand shares of the capital stock of the Glenn County Telephone Company, evidenced by certificate No. 12, of which plaintiff claimed to be the owner on March 14, 1908. Subsequently to the filing of the original complaint, plaintiff filed an amended complaint alleging that defendant had converted said shares, and praying for the judgment of the court that said shares be returned to plaintiff or that defendant pay the value thereof. Defendant filed a motion to strike out portions of the first amended complaint for the following reasons: "1. That no order was had or obtained for the filing of said first amended complaint; or if an order was had or obtained for the filing of said amended complaint, the same was not filed within the time allowed by law or by the court; 2. That said amended complaint changes the original cause of action, from an action in contract to an action in tort, and that said first amended complaint is not germane to the issues as framed by the original pleadings, and introduces a different cause of action." It was alleged in the original complaint that on March 14. 1908, plaintiff deposited a certain certificate No. 12 with defendant as a trustee under the terms of a certain pooling agreement, a copy of which is attached to the complaint and made a part hereof; that this pooling agreement provided that the stock so deposited with defendant was to be pooled for ten years from that day for the purposes set forth in said agreement; that said pooling agreement was entered into between plaintiff and defendant and several other stockholders of said company on March 14, 1908, and, among other things, provided that the signers of said agreement represented fifty-one per cent of the capital stock of said company, and they agreed that the stock should be vested in a trustee for their benefit for ten years after the incorporation of said company, the said shares to be voted in a body for any and all purposes during that period, and that the votes to be cast, whether for directors or any other purpose, should be cast as a whole, agreeable to the direction or control of a majority of the fifty-one per cent of said stock; that each of the signers was the owner of a specified number of shares, of which the agreement showed that plaintiff owned five thousand shares; that defendant owned twelve thousand shares and that pursuant to, and to attain the purposes mentioned therein, the certificates of stock belonging to the signers should be placed in the physical possession of defendant, to be held by him during that period; that said certificates of stock, representing fifty-one per cent, which had been, or might be, issued to the signers should bear the indorsement showing that it was subject to said pooling agreement; that during the time covered by the agreement no part of the stock should be sold or transferred except by consent of a majority of the owners, and that defendant accepted such trusteeship and agreed to, and did, accept physical possession of said certificate subject to the terms of said pool agreement. It is further alleged in the complaint that in December, 1915, the franchise and property of said company were sold for eighty-three thousand dollars, the company receiving that amount on account of such sale; that deducting the indebtedness of the company there remained the balance of fifty-one thousand five hundred dollars, to be divided among the one hundred thousand shares of stock of said company then outstanding; that defendant received from the corporation all moneys due the plaintiff from said incorporation on account of his said five thousand shares of stock, amounting to three thousand dollars, and before the commencement of this action plaintiff demanded the same of defendant, and that defendant refused, and still refuses, to account to plaintiff therefor, or for any sum of money due him, as owner of the said stock; that defendant has converted the money to his own use; that the owners of said stock received from the said sale $.60 per share, as their proportion of the proceeds thereof. The complaint also sets forth a second cause of action in the form of a common count for money had and received by defendant for and on account of plaintiff, and for the use of plaintiff, in the sum of three thousand dollars, and it was alleged that defendant became indebted to plaintiff for that sum, and though often requested to pay the same, had failed at all times to do so. The original complaint was filed on or about May 8, 1916. Defendant demurred thereto, which being overruled, he filed his answer to the complaint on July 10, 1916. In his answer he denied plaintiff's ownership of said certificate of said shares, evidenced by said certificate No. 12, but admitted that on March 14, 1908, plaintiff deposited said |