Reese v. Darden

[700]

McCOMB, J.

Defendant Darden, hereinafter referred to as defendant, appeals from (1) an order of the trial court entered October 30, 1950, providing for a stay of dissolution of defendant corporation pursuant to the provisions of sections 4658-59 of the Corporations Code upon defendant’s filing a bond in the sum of $12,000, and particularly from the portion of such order providing that defendants convey to plaintiff a certain parcel of real property as a condition precedent to staying dissolution of defendant corporation, and (2) an order entered November 21, 1950, vacating the order entered October 30, 1950, because of the failure of defendant to convey the parcel of real property described in the order of October 30, 1950, to plaintiff.

Facts:

Plaintiff filed a complaint containing four alleged causes of action, one for declaratory relief, the second for an accounting, the third for specific performance of a contract whereby defendant corporation agreed to sell a parcel of land known as Lot 1 to plaintiff, and the fourth for dissolution of defendant corporation. After trial the court found (a) with reference to the first cause of action which sought to have the parties’ rights declared with reference to a lease and promissory note that an indebtedness which defendant Darden claimed against the defendant corporation had been paid and ordered cancellation of the note evidencing such indebtedness; (b) that the second cause of action seeking an accounting should be dismissed without prejudice; (c) that the third cause of action should be dismissed without prejudice because plaintiff “in open court, agreed not to enforce the specific performance of” his “contract if other proper relief were granted plaintiff in plaintiff’s fourth cause of action”; and (d) on the fourth cause of action judgment was given in favor of plaintiff ordering dissolution of defendant corporation and providing that in the event of the dissolution of the corporation there should “be distributed to” plaintiff “as a part of his share, the real property described in plaintiff’s third cause of action in plaintiff’s complaint,” to wit, the parcel of land known as Lot 1. This judgment has become final, plaintiff not having appealed therefrom and defendant’s appeal having been dismissed upon plaintiff’s motion.

Questions:

First: