Barton v. El Encanto Apartments, Inc.

PRESTON, J.

Upon this appeal, in an action to recover for alleged personal services rendered by plaintiff, as an architect, in connection with the proposed construction of an apartment house, a question arises as to the propriety of the court’s action in overruling, for lack of prosecution, the demurrer of certain defendants and thereafter permitting the entry against them' of judgment by default.

The complaint alleges that defendant corporation proposed to construct an apartment house in Hollywood at a cost of $4,600,000, later raised to $6,000,000, and on Octo

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her 14, 1924, entered into an agreement to employ plaintiff, as its architect and engineer, to perform various services for which he was to receive as compensation three per cent

“of

the actual final total cost of said apartment building”, one per cent thereof being payable as follows: Two thousand dollars on November 1, 1924, to be placed in a special bank account, which was to be kept subject to plaintiff’s check at approximately that figure, for the purpose of furnishing a drawing account for expenses; the remainder of said one per cent to be paid upon completion of the working plans and specifications for said building; the other two per cent compensation to be applied “upon the subscription” by plaintiff to $162,700 worth of capital stock of the corporation, carrying with it ninety-nine year leases upon eight specified apartments, which stock had a par value of $100 per share and, it is alleged, would be worth that sum, had the building plans been carried out.

The pleading further alleges that on November 1, 1924, plaintiff was ready to perform under said contract and did for nine months thereafter perform all things required of him but that defendant corporation did not build the building or otherwise keep any of its promises, aside from giving preliminary instructions and depositing $1450 to plaintiff’s credit; that plaintiff expended $713.60 in performing said contract; that the cost of office space, assistants and all other expenses, in performing it to completion, would have been $29,800; that there is due, owing and unpaid to plaintiff from said defendant $150,200. The complaint further alleges, upon information and belief, that all subscribed and outstanding stock of the corporation, totaling 8,251 shares, is owned by the various stockholder defendants in the respective proportions alleged. The prayer is for judgment against the corporation in the sum of $150,200 as well as for judgment against each of the other defendants for “the portion of said $150,200 which the number of shares of said corporation set opposite the names of said defendants, respectively, in said schedule, bears to the total number of shares . . . subscribed, issued or outstanding”, and for costs or other or further relief.