De Vally v. Kendall De Vally Operalogue Co.

PRESTON, J.

Appeal by plaintiff from judgment entered upon order sustaining, without leave to amend, demurrer of defendants to the first and third causes of action stated in plaintiff’s amended complaint for declaratory relief, for an accounting, for salary, damages and other and further relief.

The complaint is predicated upon, and pleads

in haec verba,

a written agreement executed September 16, 1931, by plaintiff as first party, and by defendants Henry E. Kendall and his son, Gerald H. S. Kendall, as second parties. It was thereby agreed that these parties would form a California corporation (later incorporated as Kendall de Vally Operalogue Company, Ltd., defendant herein), to which Henry E. Kendall would loan not exceeding $25,000 to finance a sample operalogue made, from condensation of an opera by plaintiff, into a sound motion picture. One share of stock was to be issued to each of the parties, who were to be the officers of the corporation. Plaintiff agreed to transfer to said corporation all his right and title to all operalogues or condensations of operas theretofore or thereafter made by him, "as long as he should be a stockholder of the corporation. He further covenanted as follows:

“Party of the first part agrees to enter into a contract with said corporation for the natural life of said corpora

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tion or until its dissolution by the unanimous consent of all parties, to give his full time services to the corporation commencing October 1, 1931, at a Salary of . . . $250 per week until January 1, 1932, payable weekly, and thereafter . . . $500 per week, .payable weekly.”

The amended complaint herein, by the first count, alleges that on September 17, 1931, the corporation was duly organized; that- it accepted plaintiff’s services until January 24, 1933, when he was discharged without just cause and requested to resign immediately as an officer and director thereof; that plaintiff relies upon the whole of said written instrument and has at all times held himself in readiness to render his services to defendants thereunder; that $25,500 became due him from the time of his discharge to the time of filing this action; that the corporation was entirely dominated by and was the business conduit and