*330Argued March 23, decided April 26, rehearing denied November 29, 1910.
On the Merits.
[108 Pac. 197.]
The averments of the complaint, setting forth plaintiff’s individual claim, are the same as those of the assigned claims, with the exception as to the amount to be paid. In that case defendant was to pay plaintiff the reasonable value of his 998 shares of stock, which are alleged to be of the value of $35 per share. The answer consists of denials of the material averments of the complaint. Subsequent to the filing of this action, plaintiff brought a second action against the same defendant, upon the claims of thirteen other shareholders, which had been assigned to him. The statement of the several causes of action therein is in the same language as those in the first complaint. This latter cause was put at issue upon an answer consisting of denials only. By consent of the parties an order was made by the court consolidating these actions, and they were tried before a jury as one action. A verdict was returned in plaintiff’s favor, and from the judgment entered thereon the defendant has appealed. Affirmed. For appellant there was a brief over the names of Mr. Arthur C. Emmons, Mr. William M. Gregory and Mr. William D. Fenton, with oral arguments by Mr. Emmons and Mr. Gregory. For respondent there was a brief and an oral argument by Mr. Martin L. Pipes. Mr. Justice Slaterdelivered the opinion of the court.
4. Many assignments of error, based on rulings of the court, on receipt and rejection of testimony, and on instructions given and refused, are presented for our consideration, but we are confronted with an objection entered by plaintiff’s counsel to any consideration thereof by the court. The objection is that no proper or legal bill of exceptions has been presented. There is on file a document indorsed “Bill of Exceptions,” but it consists of a transcript of the reporter’s notes of the oral testimony and proceedings of the trial, and covers 324 pages of typewritten matter, which has been certified to by the trial judge to be “a true and correct statement of all the proceedings had in said case, and together with the exhibits attached contains all of the evidence introduced upon the trial.” It has been many times held by this court that such a transcript of the proceedings of a trial does not conform to the requirements of the statute, and is not a bill of exceptions. Counsel for appellant may term it a bill of exceptions, and so label it, but it is not one in fact. In some previous cases in this court, even where the infraction of the statute in such matters was not so extreme, and the burdens imposed upon the court not so great, this court has, of its own motion, refused to search through such a record to ascertain if error could be found. But in this case opposing counsel has entered an objection to the sufficiency of the bill of exceptions, insisting and protesting against the consideration thereof by the court. Under such circumstances, we cannot do otherwise than apply the reasoning found in the numerous previous rul*333ings of the court announced in the following cases: Beadle v. Paine, 46 Or. 424 (80 Pac. 903) ; Nosler v. Coos Bay Nav. Co., 40 Or. 305 (63 Pac. 1050: 64 Pac. 855) ; MacMahon v. Duffy, 36 Or. 150 (59 Pac. 184) ; O’Connor v. Van Hoy, 29 Or. 505 (45 Pac. 762) ; Hamilton & Rourke v. Gordon, 22 Or. 557 (30 Pac. 495) ; Eaton v. Oregon R. & N. Co., 22 Or. 497 (30 Pac. 311) ; Janeway v. Holston, 19 Or. 97 (23 Pac. 850) ; Tucker v. Salem F. M. Co., 15 Or. 581 (16 Pac. 426) ; State v. Murray, 11 Or. 413, 414 (5 Pac. 55). We therefore must decline to examine any of the assignments of error based upon rulings made by the trial court on the admission or rejection of testimony, or instructions given or refused by the court.
5. It is next insisted that this record, called a “bill of exceptions,” cannot be examined by the court for the purpose of determining the question arising on a denial of the defendant’s motion for a nonsuit, for the reason that it affirmatively appears upon the face thereof that the transcript, or bill of exceptions, does not contain all of the evidence. To review alleged error in refusing a motion for an involuntary nonsuit, the bill of exceptions must affirmatively show that it contains all the evidence before the court at the time the motion was made: National Bank v. Fire Association, 33 Or. 173 (50 Pac. 568: 53 Pac. 8) ; Carney v. Duniway, 35 Or. 131 (57 Pac. 192: 58 Pac. 105); Adkins v. Monmouth, 41 Or. 266 (68 Pac. 737).
6. The transcript of the evidence shows that considerable documentary evidence was offered by plaintiff upon his case in chief, which was received and marked as exhibits in the case. The certificate of the trial judge to the bound volume of evidence is to the effect that it, together with the exhibits attached, contains all the evidence introduced upon the trial, but there are no exhibits attached, hence the effect of the certificate is that the *334transcript of the evidence alone does not contain all of the evidence. A separate bundle of papers fastened" together, which appear to have been used as evidence in some case, has been sent up to this court, but none of the documents contained therein bear any indorsement indicating that they had been used as evidence in this case, or had been filed therein by the clerk of the trial court. They have not been made a part of the bill of exceptions by being physically attached thereto, nor are they identified in any manner by the trial judge. However, there is attached a certificate of the county clerk, to the effect that they constitute exhibits in the present case but that is not the identification required by the statute, and is not sufficient to make them a part of the bill of exceptions: State v. Kline, 50 Or. 426, 430 (93 Pac. 237); Multnomah County v. Willamette Towing Co., 49 Or. 204, 214 (89 Pac. 389).
7. There is nothing, therefore, before this court which it can consider, excepting the question whether the complaint states a cause of action. This question was raised by defendant’s motion for judgment on the pleadings, which motion was interposed after the testimony of all the parties was in. The sufficiency of the complaint, not having been tested by demurrer, or by motion before trial, it will be more liberally construed than when tested by demurrer before trial: Cederson v. Oregon Nav. Co., 38 Or. 343 (62 Pac. 637: 63 Pac. 763) ; West v. Eley, 39 Or. 461 (65 Pac. 798) ; Walker v. Harold, 44 Or. 205 (74 Pac. 705) ; Portland Iron Works v. Willett, 49 Or. 245, 249 (89 Pac. 421: 90 Pac. 1000).
8. The motion is urged on the theory that the alleged contract is void as against public policy. If a contract is susceptible of two different constructions, one of which tends to make it legal, and the other one illegal, that construction is to be given to the contract which will make it legal, rather than the one that will make it illegal. *3352 Parsons, Contracts (9 ed.) 500; 15 Am. & Eng. Enc. Law (2 ed.) 933; Hobbs v. McLean, 117 U. S. 569 (6 Sup. Ct. 870: 29 L. Ed. 940) ; U. S. v. Central P. Ry. Co., 118 U. S. 235, 240 (6 Sup. Ct. 1038: 30 L. Ed. 173) ; Hildebrand v. Bloodsworth, 12 Or. 75, 80 (6 Pac. 233) ; Arment v. Yamhill County, 28 Or. 474, 479 (43 Pac. 653).
9. Plaintiff and his assignors were stockholders of the Oregon Traction Company, the property of which defendant wished to purchase. The property was necessary to the carrying on of the business for which the corporation was organized. To make the sale valid it was necessary that it should be authorized by a vote of the stockholders, and not by the directors. It is urged that plaintiff and his assignors, being stockholders, owed a duty to their fellow stockholders and the creditors of the corporation, and that, therefore, they could not lawfully sell their vote in the transaction of corporate business, or contract to vote in a particular way in the management of corporate affairs, and that any such contract would be void, as being calculated to work a fraud upon the rights of other parties interested in the corporation. The principle of law stated is undoubtedly correct, but in our view it has no application to the facts in this case, as set forth in the complaint. The following authorities were cited in support of the contention named: 1 Cook, Stockholders, § 622; 1 Page, Contracts, § 408; West v. Camden, 135 U. S. 507 (10 Sup. Ct. 838: 34 L. Ed. 254) ; Guernsey v. Cook, 120 Mass. 501; Fuller v. Dame, 18 Pick. (Mass.) 472; Cone v. Russell, 48 N. J. Eq. 208 (21 Atl. 847) ; Wilbur v. Stoepel, 82 Mich. 344 (46 N. W. 724: 21 Am. St. Rep. 568). As announced by these authorities, it is the policy of the law to secure fidelity, in the discharge of their duties, on the part of all persons holding positions of trust and confidence, and it does this by denouncing as void agreements made by them with others which may tend to inflict a fraud upon third persons interested, *336and hence it is held that a contract to make a private gain at the expense of a corporation is a fraud upon the corporation and other stockholders; and accordingly a contract between less than all of the stockholders of a corporation, for the election of one or more of the parties thereto to a lucrative office in the corporation is invalid. 1 Page, Contracts, § 408. But where all the parties interested are parties to the contract, or have knowledge of the terms of the contract, and have expressly or impliedly agreed thereto, there can be no possible fraud upon them.
10. The complaint does not state anything tending to show that there were any other stockholders than those named therein, but it avers that the defendant proposed to the several stockholders that, if they would consent to a sale, it would pay to the several stockholders the sum named in the complaint. Defendant’s counsel, in their brief, have construed this to mean that the proposal so made was to all of the stockholders, and that before plaintiffs could recover they must offer proof, showing that all had consented thereto. While the offer was personal to each shareholder, yet it was made to all of them, and therefore, all of them being parties to the contract, each of them knew when making the contract for himself what every other one was to receive. If there were any inequality as to the amount the several shareholders were to receive respectively under the contract, which is not claimed, yet, as all agreed to the terms offered, each must have consented to what the others were to receive, and there could be no fraud upon any stockholder resulting from such contract. In Jones v. Williams, 139 Mo. 1 (39 S. W. 486: 40 S. W. 353: 37 L. R. A. 682: 61 Am. St. Rep. 436), the contract sued upon was assailed as void for the same reason asserted here. The contract was for the sale by the principal stockholder to plaintiff of a quantity of shares of stock in a corporation which owned *337and conducted a newspaper. The contract included an agreement to elect plaintiff to the position of managing editor at a fixed salary. A suit in equity was brought to enjoin defendants, some of whom were not parties to the contract, from committing a threatened breach thereof, by discharging plaintiff from his position. It appeared, however, that all the stockholders knew of the terms of the contract and had acquiesced therein, and the majority of the court held that for that reason it was not void. In Wilbur v. Stoepel, 82 Mich. 344 (46 N. W. 724: 21 Am. St. Rep. 568), plaintiff had an agreement with two of the three stockholders of the corporation who were directors. It was to the effect that, in consideration of the purchase of the stock by him, he would be employed as business manager of the corporation for the period of two years. The action arose from a breach of the contract. The pivotal question in that case was whether the third stockholder, although not a party to the contract, had consented to it. It was found as a fact that he had not, and the contract, for that reason, was declared void as against public policy. But it seems to have been conceded in the opinion that if it were shown that he had assented to the agreement the contract would have been binding and enforceable.
11. It may be argued that as plaintiff was to be paid the reasonable value of his shares, and not the amount of his cash contribution to the capital stock in payment of his shares, it was possible that his special contract would result in an unfair advantage to him, as against his fellow shareholders. But there is nothing in the complaint which discloses that there was any difference in fact between the cash value and the reasonable value of the stock, and we think we would be unwarranted in assuming that there was in fact any difference. In any event, all the parties appear to have ratified what was done by assigning their claims to plaintiff, and for that reason, *338if for no other, there appears to be no reason to impute a possible fraud upon any of them. We are equally unable to see how the agreement could operate to the injury of creditors, for it does not appear from the complaint that there were any creditors, and it also appears that the property was purchased by the defendant at public sale, and under such circumstances we must assume that the reasonable value thereof was obtained and received by the officers of the corporation for the payment of its debts.
We are of the opinion, therefore, that the complaint states a cause of action, and is sufficient, in substance, to support the judgment, which is affirmed.
Affirmed.