Tierney & Lawford, Inc. v. Wilshire Cafe Co.

SEAWELL, J.

Defendants Maurice Macagno, Frank Balzano and Carlo Bravo appeal from a judgment rendered in favor of plaintiff, Tierney & Lawford, Inc., a corporation, in an action to recover from each of said defendants, upon his statutory stockholder’s liability, a proportion of an alleged indebtedness of $4,637.51 due to said plaintiff from Wilshire Cafe Co., a corporation. The Wilshire Cafe Co. was named in the title of the complaint as a party defendant, but no relief was prayed for nor judgment rendered against it. The action was dismissed before trial as to the other defendants against whom no judgment was rendered. Upon this appeal defendants contend that no indebtedness was incurred by said Wilshire Cafe Co. in favor of plaintiff at a time when they were stockholders.

The evidence introduced on behalf of plaintiff shows that between August 21, 1923, and November 25, 1923, plaintiff corporation did certain painting and decorating upon certain restaurant premises in the city of Los Angeles subsequently operated under the name Richelieu Cafe, and that

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it also supplied furnishings for the use of said business, consisting of carpeting, draperies, tapestries, 'dining-room tables and chairs and other appropriate furnishings. This work was done under an agreement made on August 21, 1923, between plaintiff corporation and defendant Maurice Macagno, purporting to act on behalf of said Wilshire Cafe Co., a corporation, and contracting in its name. A price of $26,500, to be paid in stated installments, was agreed upon. The terms of the agreement were embodied in an instrument entitled “Specifications and Estimate for Painting and Decorating Richelieu Cafe,” which concluded as follows: “Accepted—Giulio Nuceio, President.” The specifications for furnishings follow the signature of Nuccio and close with the words: “Accepted: Wilshire Cafe Co., Inc., by Maurice Macagno.” Carpet furnishings not provided for in the original agreement of the value of $950 were furnished at the request of Macagno and additional work of the value of $384 was done at his request.

It was not shown that Macagno or Nuccio were authorized as officers by the by-laws of the corporation to make the contract in question, or that authority had been conferred upon them by resolution of the board of directors of said company. At the time of the making of the agreement and until some time after November, 1923, defendant Macagno was the owner of eighty-four shares of the capital stock of said company, defendant Balzano was the owner of seventy-nine shares, defendant Bravo of sixty-nine shares, and Nuccio and one Hodel the owners of fourteen shares each. Since the by-laws provided for a board of five directors, and directors were required to own stock in the corporation until the adoption of the 1929 amendment to section 305 of the Civil Code, it is to be inferred that said five persons, the owners of all issued capital stock, constituted the board of directors.