71 Cal. App. 2d 340 | Cal. Ct. App. | 1945
Plaintiff commenced this action to quiet title to one-third the shares of certain corporate stock to which defendant held legal title. The court sustained defendant’s demurrer to the complaint, and plaintiff filed an amended complaint. Defendant demurred to the amended complaint, and the court sustained the demurrer and gave plaintiff ten days within which to amend. Plaintiff is appealing from an order and a judgment of dismissal rendered after she had failed to amend within said time.
It was alleged in the amended complaint that D. H. Botch-ford and the plaintiff were husband and wife for many years, and that a final decree of divorce was granted to plaintiff in 1929. A part of the final decree of divorce was set forth in the amended complaint, and in that part of the decree it was ordered that D. H. Botchford comply with the terms of an agreement between plaintiff and D. H. Botchford, dated November 26, 1924, and an amendatory agreement between said parties, dated May 17, 1928, and in particular it was ordered that D. H. Botchford pay to plaintiff one-third of
Appellant argues that the phrases “the same as received” and “in whatever form received,” explain how payment is to be made, that is, in the same form as received by D. H. Botchford; and that the agreement is a “promise to convey a stated portion in the same form as received of any property received by D. H. Botchford as compensation, whether it be money or personalty.” The phrase “the same as received” mentioned in appellant’s argument does not appear in the agreement. The phrase to which appellant apparently intended to refer, namely, “as the same are received,” is materially different from the phrase referred to in her argument. The phrase “as the same are received,” appearing in the agreement, indicates the time of payment rather than the form of payment as suggested by the phrase “the same as received,” appearing in appellant’s argument. The other phrase “in whatever form received,” mentioned by appellant, is also different (but not materially different) from the language in the agreement, which is “in whatever form the same shall be received. ’ ’
The agreement as a whole shows that the parties thereto contemplated that appellant should be paid in money, and that the amount of the money to be so paid was to be determined not only by computing one-third of the money received by D. H. Botchford as compensation, but also by computing the amount of money which would be equivalent to the value of one-third of property, other than money, received by him as compensation. The paragraph of the agreement above quoted used the words “pay” and “paid” in referring to the obligations on the part of D. H. Botchford. It is therein stated: that, “D. BE. Botchford agrees to pay,” that “said sum so hereby agreed to be paid,” that “Said sums so agreed to be paid,” and that (said sum) “shall be paid upon draft.” In another paragraph of the agreement it is provided that “Said D. H. Botchford shall not be required to pay any of the sums provided to be paid by him as his earnings” if at any time appellant shall have remarried. In the last paragraph of the agreement it is stated that the “sums due thereunder, shall be due and payable” either in the place where the contract was made or at any place he may be employed. (Italics added.) The amendment to the agreement, as above stated, contained a provision that 33% per cent be substituted “as the percentage tobe paid.” (Italics
Near the close of the amended complaint there is an allegation that plaintiff is the owner of one-third of said 10,943 shares of stock and that defendant’s claim thereto is without right. Although such allegation is the usual short form allegation appropriate to quiet-title actions which are based upon legal ownership, it is not a sufficient allegation herein, since plaintiff’s right, if any, is entirely equitable. In Strong v. Strong, 22 Cal.2d 540 [140 P.2d 386], it is said at page 546: “Any rights that she might have to the cancellation of the deed or to the declaration of a constructive trust are entirely equitable . . . and it is settled that such rights cannot be established in an action to quiet title when the pleadings contain merely general allegations asserting defendant’s ownership and denying that of plaintiff.” Plaintiff does not rely upon the short form allegation above mentioned to state a cause of action but contends that the facts are so fully pleaded, as required in a quiet-title action by an equitable owner, that a “declaration of legal ownership” in plaintiff may be made by the court. As above stated, her allegations were not sufficient to show ownership in the plaintiff; nor were they sufficient to entitle plaintiff to have her alleged interest in the stock impressed with a trust or to put Alt to his defense that he was a bona fide purchaser.
It appears further that the amended complaint failed to state facts fully in other respects. The amended complaint was uncertain in that it was not alleged therein what portion of the 12,143 shares of stock was purchased by D. H. Botch-ford for $5,000 and was not subject to plaintiff’s claim, as distinguished from the portion thereof which plaintiff asserts was transferred to D. H. Botchford by the bank to adequately compensate him and was subject to her claim of ownership. In other words it appears from the amended complaint that a part of the consideration for the 12,143 shares was $5,000 paid by D. H. Botchford, and the other part of such consideration was the services rendered by D. H. Botchford. Plaintiff asserts equitable ownership in one-third of all the 12,143 shares even though she alleges in effect that a portion thereof was not transferred to him as compensation for his services, but was purchased by him for $5,000. She asserts equitable ownership in one-third of the 10,943 shares which were transferred to defendant Alt, and does not allege what portion thereof, if any, was purchased with the $5,000, and does not allege whether the 1,200 shares which were not transferred to defendant Alt were retained by D. H. Botchford and became a part of his estate, or if the 1,200 shares became a part of his estate whether all of those 1,200 shares constituted a part of the one-third of the 12,143 shares to which she claims she was entitled.
The amended complaint was also uncertain in that it did not allege the value of the 12,143 shares at the time the bank foreclosed the pledge, and did not allege what amount the bank paid in purchasing those shares at the foreclosure. Although it was alleged the Rich Manufacturing Company was in a precarious financial condition, it was not alleged to what extent it was in such condition. In other words sufficient facts were not alleged, as to the value of the shares and the financial condition of the company, from which it could be
It was also alleged that D. H. Botehford was installed by the bank as manager of the Rich Manufacturing Company “about 1935” at a salary of $600 per month. It therefore appears that he was installed as such manager before the bank foreclosed its pledge and acquired control of the company in January, 1936. Since the bank sold the 12,143 shares (of the 13,000 issued shares) on May 27, 1936, to D. H. Botehford, it appears that the bank had control of the company less than 5 months. The amended complaint is therefore uncertain as to whether the 12,143 shares (which was the entire interest of the bank and practically all the stock of the company) were transferred to Botehford to “adequately compensate” him for his services rendered during a period of less than 5 months, or to compensate him for services rendered by him during that period and for a period of time prior thereto, that is, from the time he was installed as manager, “about 1935.”
The order and judgment are affirmed.
Desmond, P. J., and Shinn, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied December 20,1945.