Sampson v. Sapoznik

DORAN, J.

The present appeal is from a judgment awarding plaintiff $19,500, with interest, against the defendants Sapoznik, Ticktin, and Landfield, from which judgment the first two named defendants are appealing. The amended complaint contains five causes of action including rescission

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for fraud aud for breach of contract, damages for money advanced under a void contract, declaratory relief, and for money had and received.

Prom the findings and conclusions, it appears that the judgment was based on plaintiff’s third cause of action, namely ‘ ‘ That the sale to plaintiff of the 1,000 shares of common stock of the Scarfanet Co., a California corporation, was in violation of the . . . Corporate Securities Act,” in that no authorization had been granted for the issuance or sale of such stock, and that no application for such permission had been filed. The trial court concluded that “the sale and Memorandum of Agreement executed in connection therewith are illegal and void.”

The record discloses that on October 6, 1950, a written memorandum of agreement, dated September 30, 1950, was signed by plaintiff Sampson and defendant Theodore J. Ticktin, who was president of the Scarfanet Company, reciting that Ticktin “is entitled to receive 1,000 shares of the common stock of the' Scarfanet Co., . . . pursuant to an application of the said corporation for a permit to issue such stock to the second party, which permit has been filed or is about to be filed.” Sampson therein agrees to pay “the sum of $10,000.00 in payment and as the consideration for 1,000 shares of common stock of the Scarfanet Co., . . . ; said stock being all of the outstanding and issued stock of the said corporation.” Sampson likewise agrees to pay $500, “for an assignment of the indebtedness in the amount of $1,958.27 of the corporation to the second party (Ticktin) for monies advanced by the second party to the corporation.”

In addition to the above agreement, Sampson was given an assignment of license “to manufacture a certain combination scarf and hairnet under the name of Scarfanet,” signed by Theodore Ticktin, Joseph Landfield and Benjamin Sapoznik. Also dated the same day, September 30, 1950, is a memorandum of agreement “to indemnify and hold harmless the Scarfanet Co.” in reference to certain contract liabilities, which recites that Sampson “has this day purchased all of the right, title and interest in and to 1,000 shares of the common stock of the Scarfanet Co. . . . being all of the issued and outstanding stock of said company to be issued pursuant to the Application for Permit to issue stock dated September 30, 1950.”