Moulton v. Knapp

Foote, C. A. W. Moulton and four other persons instituted this action for an injunction against Sewell Knapp, E. G-. Knapp, and R. B. Purvis. It was alleged, among other things, in the complaint that the plaintiffs were stockholders and directors in a corporation denominated the Oakdale Lumber and Water Company, and that they together owned three fourths of the stock in that company; that the affairs of the corporation were in such a condition as that any suit or action brought against it would necessarily embarrass its interests, as [386]the corporation was just getting into shape that would mate it in a short time a paying institution.

That on the third day of April, 1886, S. Knapp had two notes against plaintiffs, one for. about seven thousand five hundred dollars, and the other for about one thousand dollars; that upon the day above mentioned he commenced an action against the makers of those notes, the plaintiffs here, to recover what he claimed was due him; that about two days after this he went to these plaintiffs, and informed them that he had brought the suit, that he did not wish to annoy them, but wanted to be secured in the payment of his claims, that if they would waive all defense to the notes, and acknowledge themselves jointly and severally indebted to him on these instruments, and authorize the clerk of the court where the action was pending to enter up immediate judgment in favor of S. Knapp, that he would stay all proceedings thereon and stay execution upon the judgment for the period of twelve months from the date thereof. To this the parties applied to consented, and, in writing, waived all defense, and consented and directed judgment to be entered up as agreed upon. The agreement is in this language:—

“In the Superior Court, state of California, in and for the county of Stanislaus. “ Sewell Knapp, plaintiff, against Thomas Roberts, C. H. Head, A. W. Moulton, C. W. Sproul, Abner Potter, et al., defendants. No. 617.

“ We, the undersigned, defendants in the above-entitled action, do by these presents acknowledge ourselves jointly and severally indebted and liable to the above-named plaintiff, Sewell Knapp, on the two notes sued upon herein as they are pleaded, and we hereby expressly waive all right of defense herein, and authorize and direct the clerk of said court to enter herein in favor of .said S. Knapp, and against us, or against as many of us as subscribe our names hereunto, immediate judgment for the sum of eighty-five hundred ($8,500) dollars prin