While, as held in the case just reviewed, the law creates no lien upon stock in favor of a corporation as against a stockholder who is indebted to it and the corporation cannot make a by-law which will operate in and of itself to create such lien, the corporation and its stockholder may by mutual agreement do so, and if this is done it will be good as between them and an assignee of the stockholder will not be protected by the rule as to bona fide purchasers. This is the holding in Jennings v. Bank of California, 79 Cal. 323 [12 Am. St. Rep. 145, 5 L.R.A. 233, 21 P. 852], in which case the stockholder had received a certificate which stated on its face that the stock evidenced thereby was transferable "only upon the books of the bank, personally or by attorney, upon surrender of the certificate, after compliance with the conditions printed on its back." The condition thus referred to was as follows: "No transfer of the stock described in this certificate will be made upon the books of the bank until after the payment of all indebtedness due the bank by the person in whose name the stock stands on the books of the bank, except with the written consent of the president or cashier."

Of course, all the circumstances actually surrounding the parties in the particular transactions are to be carefully considered before this implication of a promise is to be indulged." ( Smith v. Moynihan, 44 Cal. 53, 62, 63; Jennings v. Bank ofCalifornia, 79 Cal. 323 [21 P. 852, 12 Am. St. Rep. 145, 5 L.R.A. 233]; Sacramento Box Lumber Co. v. Rosenberg Bros. Co., 109 Cal.App. 56 [ 292 P. 146]; Addison's Law of Contracts, 11 ed., 447.) The true implied contract, then, consists of obligations arising from a mutual agreement and intent to promise where the agreement and promise have not been expressed in words. ( Dunham-Carrigan-Hayden Co. v. ThermoidRubber Co., 84 Cal.App. 669 [ 258 P. 663]; Williston on Contracts, vol. 1, sec. 3.)

And to say, as is said by the learned counsel, that no additional limitation can be added by contract in a particular case, seems to us to be going altogether too far." ( Jennings v. Bank of California, 79 Cal. 323, 325 [21 P. 852, 12 Am. St. Rep. 145, 5 L.R.A. 233].) "Article IX aforesaid is, moreover, not only a by-law for the regulation of the affairs of the corporation, but it is also a contract between the parties signing the same on the one part and the corporation on the other, and may be enforced as such by the corporation.

No reason whatsoever is shown by the record for an independent promise of payment of their indebtedness to appellant by the Los Angeles bank. In the foregoing and subsequent discussions we have assumed that action by the several presidents of the appellant bank was in each case action by the bank itself, for we conclude that the president and such officers who acted herein had actual or ostensible authority to bind the bank in every way that it could be bound under the law. (4 Cal. Jur. 158; Jennings v. Bank ofCalifornia, 79 Cal. 323 [12 Am. St. Rep. 145, 5 L.R.A. 233, 21 P. 852]; Burnell v. San Francisco Savings Union, 136 Cal. 499 [ 69 P. 144]; Carpy v. Dowdell, 115 Cal. 677 [47 P. 695]; Newton v. Johnston Organ etc. Mfg. Co., 180 Cal. 185 [ 180 P. 7], and Bartlett Est. Co. v. Fraser, 11 Cal.App. 373 [ 105 P. 130].) Appellant further insists that the findings hereinabove discussed are without support in the evidence, and we agree also with that contention.

A suit in equity to enforce the transfer is the proper remedy to right the wrongs of an assignee of a certificate of stock, and not an action for conversion. (Jennings v. Bank of California , 79 Cal. 323; 12 Am. St. Rep. 145; Cook on Stocks and Stockholders, 2d ed., sec. 391; Iron R. R. Co. v. Fink, 41 Ohio St. 321, 333, 334; 52 Am. Rep. 84; 1 Redfield on Railways, 157; Wilson v. Atlantic etc. R. R. Co ., 2 F. 459, 462; Treasurer v. Commercial etc. Co ., 23 Cal. 391, 393.) To say that a corporation can convert shares of its capital stock necessarily implies a fiction.

[5b] We hold that the by-law in question was and is valid. If we were to find that that by-law is invalid under the laws of Nevada, this would be a proper case for application of the rule that an invalid by-law is enforceable as between the parties within the corporate structure, — enforceable as a contract. ( Jennings v. Bank of California, 79 Cal. 323, 325 [21 P. 852, 12 Am.St.Rep. 145, 5 L.R.A. 233]; People's Home Sav. Bank v. Sadler, supra, 1 Cal.App. 189, 197; Oakland Scavenger Co. v. Gandi, 51 Cal.App.2d 69, 81 [ 124 P.2d 143]; 18 C.J.S. § 181, p. 592; 8 Fletcher Cyclopedia Corporations, supra, § 4194, p. 736; 159 A.L.R. 290, 291, anno.) [9] Appellant argues, in an effort to forestall our holding that the proceedings of October 10 were void, that the by-laws had been amended before that date and the four-quorum by-law among others had been eliminated.

(Civ. Code, § 1620) [2] "`An implied contract is one, the existence and terms of which are manifested by conduct' (Civ. Code, § 1621); or, in the language of a learned writer, `is inferred from the conduct, situation, or mutual relations of the parties, and enforced by the law on the ground of justice.'" ( Jennings v. Bank of California, 79 Cal. 323, 326 [21 P. 852, 12 Am.St.Rep. 145, 5 L.R.A. 233].) [3] "The making of an agreement may be inferred by proof of conduct as well as by proof of the use of words." ( Dunham, Carrigan Hayden Co. v. Thurmoid Rubber Co., 84 Cal.App. 669, 673 [ 258 P. 663].)

(Civ. Code, § 1621) An implied contract is one that "`is inferred from the conduct, situation, or mutual relations of the parties, and enforced by law on the ground of justice.'" ( Jennings v. Bank of California, 79 Cal. 323 [21 P. 852, 12 Am.St.Rep. 145, 5 L.R.A. 233].) "The making of an agreement may be inferred by proof of conduct as well as by proof of the use of words" ( Dunham-Carrigan Hayden Co. v. Thermoid Rubber Co., 84 Cal.App. 669 [ 258 P. 663].)

A by-law adopted by majority vote binds stockholders who do not assent. Even a by-law, if invalid, may operate as a binding agreement on those who assent to it, if not opposed to public policy as a contract. ( Vannucci v. Pedrini, 217 Cal. 138, 143 [ 17 P.2d 706]; People's Home Savings Bank v. Sadler, 1 Cal.App. 189 [ 81 P. 1029]; Jennings v. Bank of California, 79 Cal. 323 [21 P. 852, 12 Am. St. Rep. 145, 5 L.R.A. 233]; 6A Cal. Jur. 327.) [11] The resolution herein was not adopted as a by-law. All stockholders in general and Gandi in particular assented to it and endorsed their stock and permitted it to remain with the company as contemplated by the resolution.

An implied contract is one that "is inferred from the conduct, situation or mutual relation of the parties and enforced by the law on the ground of justice". ( Jennings v. Bank of California, 79 Cal. 323 [21 P. 852, 12 Am. St. Rep. 145, 5 L.R.A. 233].) "The making of an agreement may be inferred by proof of conduct as well as by proof of the use of words." ( Dunham-Carrigan Hayden Co. v. Thermoid Rubber Co., 84 Cal.App. 669 [ 258 P. 663].)