Lopez Canyon Oil Co. v. Lofquist

ARCHBALD, J.,

pro

tem.

This is an appeal from a judgment entered after an order sustaining defendant’s demurrer to plaintiff’s first amended complaint.

The original defendant, R. W. Nuttall, died after the filing of this appeal and an order was made substituting as defendant the executor of his last will and testament.

By its amended complaint plaintiff seeks to recover from the original defendant four separate sums alleged to be due it from him, alleging that he was the secretary of plaintiff corporation for some time prior to September 20, 1913, and for six months thereafter, and that during such time and until December 29, 1919, he “dominated the said company, kept, made and had the entire control of the records and of the finances of said corporation”. The first cause of action seeks to recover the sum of $13,920, being the balance remaining, after payment to himself of $1800 for defendant’s services as secretary, of the sum of $15,720 collected by defendant on an assessment levied September 20, 1913, by the corporation on its issued capital stock. Such count also asks interest on said balance at the statutory rate of seven per cent per annum from January 1, 1914. The second cause of action claims the sum of $4,161, being the balance left out of $4,761 collected by defendant on another assessment levied on the issued stock of such corporation on January 14, 1918, after payment of $600 then due Nuttall for salary as such secretary. Interest is also claimed on said balance from April 29, 1918. The third cause of action asks for the return and cancellation of 49,999 shares of the capital stock of plaintiff corporation, or in default thereof damages in the sum of $49,999 with interest from January 14, 1918, at the statutory rate, alleged to be due from Nutt

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all by reason of his conversion on or about January 14, 1918, of said 49,999 shares of plaintiff’s capital stock, allegedly returned to said corporation by one A. L. Darrow, to whom it was issued by such corporation pursuant to the latter’s unexecuted agreement to obtain money to sink a test well on property adjoining that of plaintiff. The fourth cause of action seeks the return and cancellation of 6,750 shares of plaintiff’s capital stock, transferred to Nuttall on September 10, 1910, by Darrow from stock given Darrow on his said unexecuted agreement, or in default thereof damages in the sum of $6,750 with interest from September 20, 1913.