Stevens v. Weisbaum

CRAIG, Acting P. J.

The plaintiff and respondent instituted this action against the executrix of the estate of Harry L. Weisbaum, deceased, alleging that from January 21, 1921, to July 31, 1921, plaintiff was employed by the H. G. Stevens Company, a corporation, at an agreed salary of $200 per month, of which but $47 had been paid, and that he advanced to the corporation $100, none of which sum had been repaid; that one C. C. Stevens, “plaintiff’s assignor,” was employed by said corporation from February 1, 1921, to July 31, 1921, at an agreed salary of $100 per month, of which amount but $20.51 had been paid. It was further alleged in the complaint that Harry L. Weisbaum was a stockholder of the corporation mentioned, and that his proportionate liability as such stockholder for the salaries remaining unpaid was $751 and $570 respectively; that Weisbaum died testate on June 3, 1921, and that the plaintiff had duly presented to the executrix of his estate proper claims for said amounts, each of which was rejected, and judgment was prayed therefor.

The defendant and appellant by answer denied the existence of the corporation, the employment of said parties, and the indebtedness, affirmatively alleging that the corporation applied to the commissioner of corporations for a permit to issue 4,000 shares of stock, 1,000 each to the plaintiff H. G. Stevens, C. C. Stevens, Benjamin L. Frank, and Harry L. Weisbaum, since deceased, but that these proceedings had not at the time of the latter’s death been completed; that the “corporation was suspended” on March 4, 1922, for failure to pay the state license and franchise taxes; that the two Stevenses were actually liable with the defendant for any moneys due the plaintiff or “his as-Q signor”; and by counterclaim appellant alleged that the

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corporation incurred an indebtedness amounting to $1,062.46, of which $683.83 had been paid by said estate, and prayed that the Stevenses’ proportionate share of such liability be set off against any judgment that might be rendered in favor of the plaintiff.

The trial court found generally that all of the allegations of the complaint were true, and specifically found that there were issued to Weisbaum on February 17, 1921, 425 shares, February 26, 1921, 200 shares, and March 8, 1921, 200 shares of the capital stock of the corporation in question; and that on February 11, 1921, there was issued one share of stock to each of the three other persons named in the pleadings; that the plaintiff had been paid his salary to April 15, 1921, and that his assignor had received $20.51 on account of the February services, and that the plaintiff had also been paid $47 on account of salary earned after April 15. The trial court rendered judgment for the full amount of $751 in favor of the plaintiff, and $535 to his assignor, against the estate, and the defendant appealed. We think the judgment was excessive.