Reed v. Norman

• Decision Date: 12 May 1953
• Citation: 256 P.2d 930,41 Cal.2d 17
• Parties: REED v. NORMAN et al. L. A. 22561.
• Court: California Supreme Court

Page 930

256 P.2d 930

41 Cal.2d 17

REED v. NORMAN et al.

L. A. 22561.

Supreme Court of California, in Bank.

May 12, 1953.

Hy Schwartz, Beverly Hills, for appellant.

John Earl Haskins, in pro. per.

Alfred Jay Luke, Los Angeles, for respondents.

GIBSON, Chief Justice.

Hoyt Reed, a shareholder of Norman Decorating Co., Inc., brought this action to contest the validity of an election of corporate directors, to void shares of stock issued by the corporation to defendant Carl Norman, and to obtain an accounting of corporate funds. The trial court found and concluded that the shares were properly issued to Norman and that the election was valid. It also took an accounting and made certain findings with respect thereto. Judgment was entered accordingly, and Reed has taken this appeal.

The Norman Decorating Co., Inc., was organized in California in January 1949 by Norman and two other men for the purpose of engaging in the paint contracting business. Sometime in March 1949 Norman's associates withdrew, and Reed took their place. The offices of the corporation were located on the premises of Carl's Paint Store, a business which was separately owned by Norman. Reed worked in the field supervising painting jobs, and Norman worked in the office. Paints and matrials used by the corporation were purchased from manufacturers and delivered by them directly to the jobs but were billed to the corporation through the paint store.

In April 1949 the Norman Decorating Co., Inc. applied to the Commissioner of Corporations 'for a permit to issue 500 shares of stock to Norman and Reed, or to either of them, at $10 par value, for cash.' Pursuant to the application a permit was granted for the issuance of the 500 shares 'for cash.' In the following September 245 shares were issued to Reed and 255 to Norman. Reed paid 2,450 for his shares. Norman paid $1,500 cash, and the books show that the sum of $1,050 remaining due for the stock was charged against Norman's account. At that time the corporation was indebted to Carl's Paint Store which, as we have seen, was owned by Norman, in a sum in excess of the amount charged against his account.

Differences arose between the parties with respect to the manner in which the business was being conducted and the amount charged the corporation by Carl's Paint Store for materials. At a shareholders' meeting on April 27, 1950, when the question of electing a new board of directors arose, Reed challenged Norman's right to vote his 255 shares on the ground that they were void because not paid for with cash as required by the stock permit. Norman nevertheless voted all of his shares and elected a slate of directors which was composed of himself, Reed and one John Haskins.

The first question which must be determined is whether Norman paid cash for his chares in compliance with the terms of the permit. It is clear that he paid $1,500 cash for 150 of his shares. With respect to the remaining shares the books of the corporation show under the heading 'capital Account,' the following entry: '8/31/49 1050. Journal Entry, charged to Norman's Advance account 'to set up liability for stock. " Under the heading 'Withdrawals Norman,' the following entry appears: '8/31/49 Advance (Journal Entry) $1050. (Liab. for stock).' At the time the foregoing entries were made the books did not show any charges by Norman or Carl's Paint Store against the Norman Decorating Co., but there was evidence which supports a finding that the corporation then owed the store more than $1,050 for paints and materials. The trial court concluded that at the time the stock was issued to Norman he was entitled to $1,050 from the corporation and 'that by crediting the same amount to the Capital Stock Account that the corporation actually benefited in cash in the amount paid for said stock, to wit, $1050.00.'

Section 26100 of the Corporations Code provides that securities issued in non-conformity with the terms of a stock permit are void, and it is well settled that stock must be sold and disposed of in strict compliance with the provisions of the permit authorizing its issuance. Mannion v. Baldwin, 217 Cal. 600, 603, 20 P.2d 678. Shares have been held void for non-compliance with a cash requirement where they were, in fact, issued in exchange for real property, Holmquist v. Kent, 219 Cal. 231, 25 P.2d 977; People v. Stewart, 115 Cal.App. 681, 2 P.2d 195, for personal property, Mannion v. Baldwin, supra (partnership interest); Herkner v. Rubin, 126 Cal.App. 677, 14 P.2d 1043 (merchandise), for promissory notes, see Imperial Live Stock & Mtg. Co. v. Tracy, 208 Cal. 205, 281 P. 50; Gridley v. Tilson, 202 Cal. 748, 753, 262 P. 322, or for personal services. See Barton v. El Encanto Apartments, Inc., 216 Cal. 500, 502, 14 P.2d 501. There was no evidence of an agreement that the sum of $1,050 due from Norman for the stock was to be applied in reduction of the amount owed him for merchandise, and the trial court did not so find. Nor did the court find that the books showed that the indebtedness to Norman for merchandise was reduced by the amount due from Norman for stock. It is not clear that the record in this case would support a finding that the shares in question were paid for by means of a cancellation of an indebtedness due Norman. But if we assume that the record supports such a finding, it is obvious that the transaction amounts to northing more than an exchange of stock for merchandise. If the cancelling of debts were to be held the equivalent of cash, a corporation could circumvent the rule...