Lohr v. Superior Court of Cal. in and for Los Angeles County
| Citation | 111 Cal.App.2d 231,244 P.2d 5 |
| Court | California Court of Appeals |
| Decision Date | 20 May 1952 |
| Parties | . Civ. 18904. District Court of Appeal, Second District, Division 3, California |
Reynolds, Painter & Cherniss, Los Angeles, for petitioner.
Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.
Guthrie, Darling & Shattuck, Los Angeles, for real party in interest.
Petition for writ of mandate directing the superior court to discharge a writ of attachment. That court denied defendant's motion to discharge the writ of attachment.
On October 11, 1951, Clyde Victor Voss filed an action in the superior court against E. B. Lohr, Lohr, Inc., a corporation, and Angelo Mion. In the first cause of action therein, it was alleged as follows: About February 1, 1950, plaintiff and defendants E. B. Lohr and Mion entered into an oral agreement which provided: that plaintiff and defendant Mion agreed to transfer their business, known as Benson Tile, to a corporation to be known as Lohr, Inc., in consideration of the transfer by defendant E. B. Lohr of his business, known as E. B. Lohr Marble & Tile, to the corporation; the three said persons would give their exclusive time to the affairs of Lohr, Inc.; upon receiving a permit from the corporation commissioner, each of the three persons would purchase an equal number of shares in the corporation; pending the organization of the corporation and securing a permit for issuance of shares, the said three persons would transfer to the corporation the assets of their businesses and would advance to the corporation funds as required upon a share and share alike basis; defendant Lohr would act as president of the corporation and would have control of all contracts, income and expenditures of the business; plaintiff and Mion would work on jobs transferred to the corporation, and would be paid the regular pay scale for their work; each of said three persons would have an equal interest in the business, an equal voice in its management, and an equal share in its profits. Defendant Mion, who did not desire to be a party plaintiff, is named a defendant because he is a necessary party, but plaintiff seeks no judgment against him. Pursuant to said agreement plaintiff and Mion transferred their said assets to Lohr, Inc., and, upon request of E. B. Lohr, they paid the sum of $3,400 to the corporation, and they gave their full time to the affairs of the corporation. On February 7, 1950, pursuant to the agreement, the said three persons incorporated Lohr, Inc., under the laws of California. The board of directors of said corporation, which was elected at the only meeting of the incorporators, consisted of plaintiff, Mion, E. B. Lohr, and E. B. Lohr, Jr. On March 29, 1950, the corporation commissioner issued a permit for the sale of shares to said three persons and E. B. Lohr, Jr. Since the issuance of the permit defendant E. B. Lohr, as president and manager of the corporation, has refused to issue any of said shares to plaintiff or Mion or to himself (E. B. Lohr), and said defendant E. B. Lohr refuses to recognize the rights of plaintiff or Mion in or to any of the profits of the corporation or in or to any contracts entered into after February 1, 1950, and refuses to disclose to plaintiff whether such profits or contracts were made in the name of the corporation or defendant E. B. Lohr or otherwise. Plaintiff has requested defendant E. B. Lohr, as president of the corporation, to call a meeting of the directors for the purpose of securing a report as to the financial condition of the corporation but said Lohr has declined to call such a meeting. Defendants E. B. Lohr and Lohr, Inc., have received funds belonging equally to plaintiff, Mion, and E. B. Lohr in the net amount of $25,500, one-third of which is due to plaintiff. Defendants E. B. Lohr and Lorh, Inc., have refused to pay any part of said $8,500 to plaintiff.
In the second cause of action therein, it was alleged that defendants E. B. Lohr and Lohr, Inc., became indebted to plaintiff on account of moneys received by said defendants belonging to plaintiff in the sum of $8,500, and that no part of said sum has been paid.
In the third cause of action therein, it was alleged that plaintiff repeats all the allegations of the first cause of action, except the allegation that defendants E. B. Lohr and Lohr Inc., had received funds belonging to said three persons in the sum of $25,500, one-third of which was due to plaintiff; that defendant E. B. Lohr has never rendered any statement of account to plaintiff; since February 1, 1950, defendant E. B. Lohr has collected, under his name and other names, sums of money the amounts of which plaintiff does not know and cannot ascertain, but plaintiff is entitled to receive one-third of said sums; said defendant E. B. Lohr has refused to render any accounting to plaintiff. Plaintiff prayed for judgment for $8,500 against defendants E. B. Lohr and Lohr, Inc., and that defendants E. B. Lohr and Lohr, Inc., be required to account to plaintiff for all funds received and expended in the name of Lohr, Inc., E. B. Lohr, or any other name used by E. B. Lohr in conducting business subsequent to February 1, 1950.
Upon the filing of said complaint and upon application of said plaintiff Voss, a writ of attachment was issued in said action. Three bank accounts, standing in the name of defendant E. B. Lohr (petitioner herein), were attached. The affidavit of plaintiff Voss, in support of his application for writ of attachment, stated that 'defendants E. B. Lohr and Lohr, Inc. herein are indebted to me in the sum of $8,500.00 * * * upon an oral contract, for the direct payment of money, to-wit: For a joint venture the profits of which were to be divided equally between 3 parties, one of whom was the plaintiff * * *.' Defendant E. B. Lohr filed a notice of motion to discharge the attachment, and in support of said motion he filed his affidavit in which he stated that he is not indebted to plaintiff Voss at all, and that Voss and defendant Mion are indebted to him in a sum in excess of $12,000. Thereafter, plaintiff Voss amended his affidavit for attachment so that as amended it stated that def...
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