Watton v. Colonial Amusement Syndicate

WEYAND, J.,

pro tem.

By stipulation of the parties in open court, the above cases were tried together. Separate records of the cases are made, but the briefs filed are the same in both cases.

Both actions were begun on January 25, 1922. In substantially the same words, except as hereinafter disclosed, both complaints alleged that the Colonial Amusement Syndicate was a Nevada corporation, licensed to do business within California. That Norval L. Watton died on May 24, 1921, and that Alice G. Watton, his widow, was, after due proceedings, appointed the administratrix of his estate. That on divers times between the twenty-fourth day of May, 1921, and the eighth day of October, 1921, defendants received moneys, aggregating $20,000, for the use of Norval L. Watton, “in his lifetime,” and since his death for the use and benefit of his estate. These moneys are alleged to have been received by defendants from the following sources, to wit: “for and on account of moneys had and received as the proceeds of the operation of the Colonial Theatre in the City of Stockton, and the lease of the property thereof, and for moneys deposited in bank belonging to said corporation, and deceased.” Then follows a further allegation of a promise on the part of defendants to pay said Norval L. Watton, “in his lifetime” and a like promise to pay the administratrix, said sum. Further the complaint avers demands made for payment and refusal of payment by defendants.

[656]

In the second case above named the complaint makes the same charges, except that an additional defendant, one E. G. "Tollman, is added, and the sum of moneys charged to have been had and received was stated as being $6,000,, and the time covered was from October 8, 1921, until the filing of the complaint.

Specific denial was made in each case, that any such sums, or any moneys whatsover, were received by defendants for the use of Watton or his estate.

The evidence disclosed that the Colonial Amusement Syndicate was a Nevada corporation, entitled to do business in the state of California and which was doing business at Stockton in the state of California, as a moving picture and vaudeville theater. The deceased, Watton, and the defendant Yori each owned substantially one-half of the stock of the said company; the defendant Burritt owning just sufficient stock of the company to qualify him as an officer of the corporation. Watton, up to the time of his death,- was a director of the corporation and was manager of the theater at Stockton and which business was the only business of the said company. Watton, Yori and Burritt were the directors.