Munton v. Bekins

CRAIL, P. J.

This is an appeal from a judgment in favor of the respondent in an action against the appellant (a defendant) and other alleged stockholders of the Hollywood Dry Corporation to recover moneys alleged to be due by reason of the statutory stockholders’ liability formerly embraced in section 322 of the Civil Code.

Appellant complains because the trial court did not make findings on his separate defenses. In a fifth and separate defense the appellant alleged that all shares of the capital stock of said corporation standing in the name of the appellant’s decedent at the times alleged in the complaint were issued by said corporation in the state of Delaware without receiving any cash, labor done, personal property, real estate or leases thereof actually acquired by said Hollywood Dry Corporation (which would make the stock void because issued in violation of the constitution of that state). As a seventh and separate defense the appellant alleged that all of said shares were sold to the said appellant’s decedent in the state of California by persons, not

bona fide

owners of such shares of stock disposing of their own property for their own account, but that said sales were made directly or indirectly for the benefit of the issuer of said shares of stock of said corporation for the direct or indirect promotion of a scheme or enterprise with the intent of violating and evading the Corporate Securities Act of the state of California. If these defenses were, or either of them was, sustained by the evidence, the stock was void under the law as it then existed and the appellant was not a stockholder of the. corporation and no recovery might be had against him as such. (Golden

Eagle Milling Co.

v.

Albin,

219 Cal. 357 [26 Pac. (2d) 475] ;

Live Oak Cemetery Assn.

v.

Adamson,

106 Cal. App. (Supp.) 783 [288 Pac. 29];

Honn

v.

Hamer,

81 Cal. App. 276 [253 Pac. 336].) There was substantial evidence tending to support these defenses. The trial court made no finding whatever with regard to either one of them and the appellant is entitled to a reversal on this ground. (2 Cal. Jur. 1032, and