Prudential Petroleum Co. v. Peck

ARCHBALD, J.,

pro

tem.

A demurrer to plaintiff’s third amended complaint for the recovery of an unpaid stock subscription was sustained without leave to amend, and plaintiff has appealed from the judgment of dismissal thereafter entered.

The complaint contains two counts, the first of which, after alleging the corporate capacity of plaintiff, avers in substance that one Arthur R. Peck died on or about the 18th of September, 1927, leaving an estate in Los Angeles County, and leaving as his sole residuary legatees and devisees the defendants, “who heretofore have been duly and regularly appointed executors of the estate of said Arthur R. Peek, deceased, and

are now the- duly appointed, qualified and acting executors of said estate”

(italics ours); “that all interest of said Arthur R. Peck, deceased, in and to the stock and subscription agreement hereinafter mentioned is part of his residuary estate, and by the terms of his will passed to and is now the property of the defendants

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in equal shares”; that said Arthur R Peek, on or about March 19, 1920, agreed in writing to pay for and receive 333,333 shares of the capital stock of plaintiff corporation at one dollar per share, and that 252,210 shares were issiied to him or his order, for which payment was made; that 81.123 shares of said stock so subscribed for “remain unissued and unpaid for”, and “that said subscription agreement and all rights thereunder are a part of the residuary estate of said Arthur R. Peck, deceased”; that from the date of said subscription agreement to the time of his death said Peck voted said 81,123 shares of subscribed stock, was a member of the board of directors of plaintiff corporation and acted as president of plaintiff corporation, and at all times “acknowledged his liability to receive and pay for said 81,123 shares of the capital stock of the plaintiff if, as and when called for”. The foregoing is the substance of the allegations contained in the first four paragraphs of the first cause of action. Paragraph Y alleges “that from and after the death of said Arthur R. Peck the defendants herein, both individually and as executors of the estate of said Arthur R. Peck, deceased, having succeeded to all of the rights and ownership of said Arthur R. Peek, deceased, in and to said subscription agreement and said subscribed stock, and well knowing that said stock had not been paid for, have exercised acts of ownership of said 81.123 shares of such subscribed stock, have voted and caused the same to be voted at stockholders’ meetings, and have issued proxies to permit” said shares to be voted, and by reason thereof “are and in good conscience ought to be estopped to deny their ownership of said stock and any and all liability existing as against them in favor of said corporation and said other stockholders by reason of such ownership; and said defendants are now and at the times hereinafter mentioned were the owners of all of the subscribers’ rights in and to said stock and said subscription agreement, and they and each of them assumed and agreed to pay any and all sums due and to become due thereon by reason of any and all liability for the unpaid purchase price of said stock and the whole thereof”. Such paragraph further alleges that the stock above mentioned was the only stock held, owned or voted by defendants or either of them at any time mentioned in the complaint.