Read v. Johnson

SHENK, J.

This is an appeal from a judgment in favor of the plaintiff in an action to enforce a stockholder’s liability.

Andrew Johnson died intestate on July 22, 1921, in the county of Sacramento. Carl Johnson was appointed administrator of his estate, consisting of separate and community property. Á final decree distributing the estate to the heirs at law and the assigns of certain of them was filed on April 7, 1924. The administrator was discharged on April 13, 1925.

At the time of his death the decedent was the owner of 330 shares of the capital stock of the Tuba Vineyards Company, a corporation, and this stock came into the possession of the administrator. The rights, privileges and powers of said corporation were suspended on March 1, 1924, by reason of the nonpayment of its license tax. After the appointment of the administrator and during the years 1923 and 1924 said corporation contracted certain indebtedness by reason of the purchase of farm machinery, materials and supplies from Booth & Herboth, merchants at Marysville. Much of this original indebtedness, after it was incurred, was merged in promissory notes executed by the corporation to the creditor firm. Some of the notes were paid, but four of them remained unpaid. The unpaid notes and the open book account were transferred to the plaintiff for purposes of collection. On June 30, 1924, this action was commenced against the administrator to recover the proportionate share of said indebtedness chargeable to the decedent as a stockholder of said corporation.

The complaint is in five counts, four of which are on the indebtedness evidenced by the promissory notes and for interest and attorney’s fees provided for therein. The first note is dated January 2, 1924, for $950; the second is dated November 21, 1923, for $261.20; the third, December 3, 1923, for $940, and the fourth, February 1, 1924, for $1371.95. The fifth count alleged the indebtedness of the corporation to the plaintiff’s assignor in the sum of $998.16 on an open

[435]

book account extending from July 25, 1923, to February 18,. 1924. ■ After the discharge of the administrator and on December 22, 1925, the plaintiff, by leave of court, filed an amended and supplemental complaint substituting as parties defendant the heirs at law of the decedent who were the distributees of the estate and the California National Bank as assignee of the defendant widow, in the place and stead of the administrator. The demurrer of the defendant bank was sustained and the action as to it was dismissed. On issue joined by the remaining defendants the case was tried and the court ordered findings in favor of the plaintiff and appointed a referee to take the account and determine the amounts properly chargeable to each defendant. The referee found the defendant widow chargeable with the sum of $1194.33 and each of the nine remaining defendants with the sum of $146.46. Judgment was entered accordingly.