Weaver v. Atlantian Construction Co.

CAMPBELL, J.,

pro

tem.

This action is one brought by respondent against Atlantian Construction Company, a corporation, and against each of the stockholders thereof as copartners. The relief sought is for damages for the alleged breach of a building contract executed by respondent and Atlantian Construction Company, a corporation, the breach complained of being the alleged failure of the defendants to complete the construction of the building and the alleged allowance by defendants of the filing of certain mechanics’ and materialmen’s liens. From the judgment against the corporation for the sum of $2,877.57 and against each of the stockholders of the corporation for the full am mint, thereof Atlantian Construction Company and J. H. Meyering, one of the stockholders, have appealed.

Appellants urge that the judgment cannot be sustained for two reasons: First, “there is no warrant either in the

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facts or the law for the judgment against the stockholders of the defendant corporation as copartners,” and, second, “the plaintiff wholly failed in making the necessary proof of the amount of damage suffered by reason of the alleged breach of contract.”

The Atlantian Construction Company, alleged in the complaint first to be a corporation, is also upon information and belief alleged to be a copartnership consisting of each of the stockholders of the corporation. The allegation of the corporate existence is admitted, but the allegation of copartnership is denied. Upon the issue thus presented the court found “that the defendant Atlantian Construction Co., a corporation, is a corporation organized and existing under and by virtue of the laws of the State of California, and having its principal place of business at and within the County of Los Angeles, State of California. . . . That on the 29th day of November, 1921, said corporation was only an instrumentality .used by the defendants J. H. Meyering, William P. Mason and W. H. Hicks, as copartners, in the furtherance of their copartnership business, and that such partnership was on said date engaged in the general construction and building business at and within the County of Los Angeles, State of California. . . . That on the 29th day of November, 1921, each of the defendants, including both the corporation and the stockholders, as copartners, entered into a certain building contract with the plaintiff.” The findings proceed to set out the contract which recites that it is entered into by and between B. M. Weaver, party of the first part, and Atlantian Construction Company, a corporation, party of the second part, and is signed “Atlantian Construction Company by W. P. Mason, See’y” and bears the seal of the corporation.