Williams v. Landels

McCOMB, J.* Plaintiff appeals from an order granting a motion for a change of venue from the Superior Court of the State of California in and for the County of San Francisco to the Superior Court in and for the County of Santa Clara, in an action for specific enforcement of a contract.

Facts: The amended complaint alleged that on September 11,1925, plaintiff and W. A. Wallace, now deceased, as parties of the first part, entered into an agreement in the City of San Francisco with W. R. Ames, also deceased, to organize the Williams-Wallaee Company under the laws of the State of California to engage in the business of manufacturing sheet metal and other metal articles. The agreement provided that the capital stock should be $100,000, divided into 1,000 shares; that the articles of incorporation should provide for a board of five directors and should fix the principal place of business as San Francisco. It was further agreed that the parties of the first part should each be a director of the company and that the other three directors should be nominees of the party of the second part. In consideration of the agreement of the party of the second part to finance the company, the parties of the first part agreed to devote their entire time and best efforts to the company so long as the same should be financed by the party of the second part. It was also provided that the “party of the second part promises and agrees that so long as either of the parties of the first part remains with said company and devotes his entire time and attention and best efforts to said business, the party of the second part will sell to him at par all, or any part, of twenty per cent (20%) of the issued capital stock of said company at a price found by deducting from the par value of said shares all dividends paid thereon.” The agreement also contained this: “It is understood and agreed that none of the rights arising out of this contract in favor of any party shall be assignable; and that none of the parties thereto shall assign any right arising out of or under this contract.”

It was further alleged that W. R. Ames died in 1926 and that his residuary estate was distributed to his widow, the de[792]fendant Harriet Ames, and defendant Edward D. Landels. Decedent Ames’ will provided that the trustees were to hold the property for certain uses, one of which was to continue the management and control of any business which decedent directly or indirectly owned or had an interest in at the time of his death.

Mr. Wallace left the employ of the Williams company in 1945. In 1946, defendant Alan Kinkead, a son-in-law of defendant Harriet Ames, was employed by the company, elected to the board of directors and a vice-president. On April 1, 1946, plaintiff resigned as president of the company and left its employ but retained his position as director. Mr. Wallace was subsequently reemployed by the company and elected to the board of directors, which position he occupied until his death in 1950.