Doughty v. Moors

HART, J.

A demurrer, interposed to plaintiff’s amended complaint, was sustained, plaintiff declined further to amend, and judgment was entered in favor of defendants, from which judgment plaintiff appeals.

The allegations of the amended complaint are: That the Electric and Garage Company was a corporation; that C. W. Crouch “was the owner of a large majority of.t and all but one of .the issued and outstanding shares of the capital stock of,” said corporation, “and he was its president and general man

[49]

ager; that the remaining shares” stood upon the books of the corporation in the name of S. Grace Crouch, who was the secretary of said corporation and the wife of said C. W. Crouch; that on the 18th of October, 1915, certain creditors of the corporation filed, in the United States district court, a petition in involuntary bankruptcy, and that, on the 3d of January, 1916, said court made an order adjudging said corporation a bankrupt and referred the matter to the referee in bankruptcy; that on the fifteenth day of February, 1916, the creditors elected and appointed plaintiff as trustee of the estate of said corporation, which action was approved by the referee, and plaintiff duly qualified as such trustee. It is alleged that, on the nineteenth day of June, 1915, and for more than one year prior thereto, the corporation was the owner of certain real estate in the town of Calistoga, Napa County, and of certain personal property, consisting of machinery, tools, etc., used by the corporation in carrying on the business of an automobile repair-shop and garage; that said corporation, prior to the nineteenth day of June, 1915, entered into an agreement with said defendant, Frank Moors, whereby the corporation agreed to sell and said Moors agreed to buy said real and personal property for the sum of $9,192.93; that said Moors agreed to assume and pay a mortgage upon said real property amounting to $3,692.93 and to pay the balance of five thousand five hundred dollars in cash. “That on the 19th of June, 1915, and for more than six months prior thereto, the defendants, C. W. Crouch and J. R. Clark, were indebted to the J ames H. Goodman and Company Bank” of the city of Napa “in the sum of one thousand five hundred dollars”; that, on or about said date, “all of the defendants herein combined and conspired to defraud the Electric and Garage Company and to prevent” its creditors from collecting their claims, “in this: That, on or about said date, said Frank Moors, C. W. Crouch and J. R. Clark entered into an agreement whereby Frank Moors agreed to assume and pay to” said bank said sum of one thousand five hundred dollars “as part consideration to be paid for said real and personal property belonging to” said corporation, and said Moors did thereafter pay said sum to said bank; “that by reason of said agreements and the payment of said indebtedness, it was understood and agreed among said defendants that said Frank Moors would be released from the payment of one