Plxweve Aircraft Co. v. Greenwood

DORAN, J.

This is an appeal from a judgment of dismissal in favor of one of the defendants in an action for an

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accounting, to establish a trust and for declaratory relief. The judgment was entered after the defendant’s demurrer to plaintiffs’ second amended complaint was sustained without leave to amend. The complaint is in two counts and the demurrer interposed was both general and special as to both counts. The second count merely incorporates the allegations of the first count and then states that an actual controversy has arisen between plaintiff and defendants in that plaintiffs claim that by reason of the allegations set forth in the first count the defendants are constructive trustees for plaintiff in respect to the matters alleged. If the allegations of the first count of the complaint are sustained the plaintiffs would be entitled to have defendants held constructive trustees for the benefit of plaintiffs. The second count therefore adds nothing to the complaint and may be considered superfluous. As to the allegations of the complaint contained in the first count, “the inquiry here, in the light of the grounds specified in defendant’s demurrer, is confined to a consideration of whether the amended complaint stated sufficient facts with sufficient certainty to entitle plaintiff to have the demurrer overruled and to have the cause proceed to trial.”

(Genuser

v.

Ocean Acc. etc. Corp.,

42 Cal.App.2d 673, 675 [109 P.2d 753].)

The complaint in question sets forth the following facts in substance. Appellant Hemphill is the owner of 60 per cent of the stock of appellant Plxweve Aircraft Company and supplied all of the cash capital of that corporation, in the sum of $30,000, and in addition made substantial loans to the corporation to assist it in carrying on its operations. The corporation was engaged in developing and building a new type of aircraft. Respondent at all times mentioned in the complaint acted as the attorney for appellants. By the month of April, 1941, appellant corporation had depleted its capital through its operations and was in need of new capital. It is alleged on information and belief that respondent and defendant Greenwood, the general manager, vice president and a director of appellant corporation, were in a position to secure new capital, but instead entered into a plan or agreement between themselves to secure the capital for the benefit of a new corporation. Respondent and said defendant in: dueed appellant Hemphill to agree to sell the assets of appellant corporation for $30,000 upon terms contained in an agreement which is set forth in full in the complaint. Appellant Hemphill executed said agreement upon the recommenda