Kimball Motor Truck Corp. v. Fickett

MARKS, J.

Respondent instituted this action to recover for labor performed and for wares and merchandise sold and delivered to appellant between July 1, 1925, and February 1, 1926. Several causes of action based on the same accounts, and an account stated, were separately pleaded.

Appellant in his answer denied the existence of an account stated and denied the major portion of the indebtedness. In a separate defense he alleged that the labor and materials were furnished by respondent to a corporation and not to him.

The trial court found that between July 1, and December 1, 1925, respondent had furnished to appellant labor, goods, wares and merchandise of the reasonable value of $6,727.36, and that on January 13, 1926, appellant became indebted to respondent in the further sum of $16.2.08. The court further found that there was an account stated between the parties under date of November 30, 1925, in the sum of $6,727.36.

The sufficiency of the evidence to support these findings is the sole question presented on this appeal. We have carefully examined the record and while the evidence is sharply conflicting we have concluded that the findings and judgment are supported by competent evidence.

The evidence discloses that R. R. Colby was at all times material to this appeal the president and general manager of respondent; that prior to July 1, 1925, appellant was engaged in the trucking business in the city of Los

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Angeles; that on and prior to this date respondent was the owner of forty-five trucks which it had repossessed and which appellant had rented and used in his business; that appellant desired to extend his business by the purchase of these trucks; that for his convenience he decided to form a corporation through which he would operate his business. He discussed the expansion of his business and the purchase of the forty-five trucks with Mr. Colby, who expressed a willingness to become associated with him through the ownership of some of the stock in the proposed corporation.

The first move to carry out this purpose was an attempt to form a California corporation under the name of W. H. Fickett, Incorporated, with capital stock of no par value. Because of the legal difficulty presented at that time by this kind of capital stock, the attempt to form this corporation was abandoned. Next a Delaware corporation was organized under the name of Fickett and Colby, Incorported, which also had capital stock without par value. The certificate of incorporation was issued by the state of Delaware, but the corporation was not authorized to do business in the state of California nor was any permit issued by the commissioner of corporations to sell any of its capital stock. One meeting of its board of directors was held in California for the purpose of organization only. At this meeting its directors and officers were elected and a corporate seal was adopted. Owing to further legal difficulties encountered because of the capital stock without par value no further attempt was made to perfect a corporate existence in California.