$338. COMPLAINTS [OR PETITIONS]. FORM No. 700-By a foreign corporation against its agent and manager, for an accounting. (In Great Western G. Co. v. Chambers, 153 Cal. 307; 95 Pac. 151.) [Title of court and cause.] 1 The plaintiff complains of the defendant, and for cause of action alleges: 1. That at all times mentioned herein the plaintiff was a corporation duly incorporated and existing under and by virtue of the laws of the territory of Arizona, and had in all respects complied with the laws of the state of California authorizing the plaintiff to do business therein. 2. That heretofore, to wit, on or about the month of January, 1902, the defendant was employed by the plaintiff as its agent and general manager of its business in Shasta County, California, and was placed in charge of plaintiff's office at Redding, in said county; that the duties of the defendant were to develop and promote certain mines owned by the plaintiff, to employ laborers and others for that purpose, receive and disburse the money of plaintiff in connection with its business, to keep accurate accounts and vouchers pertaining thereto, also from time to time to purchase for the plaintiff mining properties in the state of California; that defendant accepted said employment and undertook to carry on the business of the plaintiff as its agent and trustee, as aforesaid. That the defendant during the period of said employment, extending from the aforesaid date up to about the 1st day of September, 1902, received from the plaintiff, as such agent and trustee, large sums of money from time to time, and was also intrusted with the duty of purchasing certain mining properties; and that, for the purpose of making such purchases, a large amount of money was placed in his hands for the purpose of being paid thereon. Plaintiff avers that the defendant, unmindful of his duties in the premises, and 1 The sufficiency of this complaint (form No. 700), although not passed upon on appeal, was tested by demurrer in the trial court upon general grounds, and upon the special grounds that the same was uncertain, ambiguous, and unintelligible, and that it improperly united several causes of action, upon all of which grounds the court overruled the demurrer: From the record in Great Western G. Co. v. Chambers, 153 Cal. 307, 95 Pac. 151. In a later appeal it was held that the facts alleged in this complaint are sufficient as declaring upon a cause of action arising upon the purchase by defendant as agent for and on behalf of the plaintiff: Great Western Gold Co. v. Chambers, 155 Cal. 364, 101 Pac. 6, 7. with the intention and purpose of defrauding plaintiff, failed and neglected to keep accurate and proper books of account showing the amount of moneys received by him and the disbursements made, and failed and neglected to take proper vouchers and receipts for money expended, and alleges that defendant converted a large portion of said money to his own use. That the plaintiff has made repeated demands upon defendant for the original books, papers, and vouchers pertaining to the business transactions by him for the plaintiff, but the defendant has wrongfully refused and neglected, and still refuses and neglects, to render proper accounts of his doings in the premises; that the accounts. between plaintiff and defendant are complicated in their nature, and that, owing to the fact that all of the books and papers kept by the defendant are in his possession and under his control, the plaintiff is unable at this time to set out more particularly the matters and things hereinbefore referred to, but expects to show the same by the books and papers in the possession and under the control of said defendant, and make discovery thereof by said books and papers and the testimony of said defendant. 3. That heretofore, to wit, on or about the 1st day of September, 1902, the defendant was duly elected and qualified as vice-president and director of the plaintiff company; and also on or about the said date was duly appointed and constituted general manager of the business of plaintiff in the state of California, and that the plaintiff's property in said state was placed in his possession as agent and trustee for the plaintiff; [here follow averments to the same effect as the averments in the preceding paragraph relating to the duties of defendant as such director, receipts of money by him, misapplication of funds, and conversion of the same to his own use, etc.;] that on or about the 20th day of September, 1902, defendant, while acting as agent and trustee for the plaintiff as aforesaid, was directed to proceed to Salt Lake City, and there purchase for the plaintiff, or procure a contract therefor, a certain mine known as the Afterthought, in Shasta County, California, and procure the same as cheaply as possible, not paying more therefor than the sum of $150,000; that the defendant, acting upon said instructions, and as the agent and trustee for the plaintiff, proceeded to Salt Lake City, and while there, for the purpose of cheating and defrauding the plaintiff in connection with the purchase of said mining claims, entered into an agreement and conspiracy with one W. F. Snyder and one Mitchell, whereby the said Snyder was to take the title to said mines from one Tarbet for the sum of $90,000, and that thereupon said Snyder was to get an approval contract for the purchase of said mines of the said tenor and effect to the plaintiff herein for the sum of $150,000; that the plaintiff herein, without knowledge of said agreement and conspiracy, accepted the contract from said Snyder at the suggestion and direction of defendant, and paid thereon to said Snyder the sum of $20,000 as the first payment, the balance of said $150,000 to be paid as follows: $90,000 on the 20th day of September, 1903; $40,000 on the 20th day of March, 1904; that said Snyder, having received said money, paid $10,000 upon the contract which he had previously made regarding the said property with said Tarbet, and that the remaining $10,000 was divided between said Snyder, said Mitchell, and the defendant herein, and plaintiff is informed and believes, and so charges the facts to be, that defendant received a large portion thereof, the exact amount plaintiff is at this time unable to state, but expects to show the same and make discovery thereof by the books and papers in possession and under the control of said parties, and by the testimony of said parties; that owing to the aforesaid facts plaintiff is unable at this time to set forth more specifically said transactions; that thereafter this plaintiff paid upon said contract to the said Snyder the sum of $110,000 in full payment and discharge of the same, making in all the sum of $130,000 paid thereon; that thereby there was lost to this plaintiff, and plaintiff was damaged, by reason of said fraudulent agreement of conspiracy and acts upon the part of said defendant, in the full sum of $40,000. [Here follow averments as to other purchases made by defendant in his capacity as said trustee, and of secret profits derived therefrom, and the fraudulent conversion of moneys representing said secret profits to defendant's own use, etc.] That the plaintiff is informed and believes, and so charges the facts to be, that the defendant, during the period aforesaid, and while acting as the agent and trustee, director, vice-president, and general manager of the plaintiff company aforesaid, received and converted to his own use, in his capacities aforesaid, the sum of at least $40,000. Wherefore, plaintiff prays: That an accounting be ordered herein of all the matters and things hereinbefore set forth, and that the cor rect amount due from the defendant to the plaintiff upon said accounting be ascertained and settled, and a judgment be entered for plaintiff for the amount so ascertained to be due from the defendant to the plaintiff; and that the defendant be ordered and decreed to convey to the plaintiff and to assign to it any real estate in his possession and under his control belonging to the plaintiff, or to which the plaintiff may be entitled upon a hearing hereof, and also all contracts for the purchase of real estate entered into by the defendant in his own name for or on behalf of the plaintiff; and that all matters and things connected with the agency and trusteeship of the defendant while acting in that capacity for the plaintiff be settled, ascertained, and determined, and a decree entered therefor; and that plaintiff have judgment for costs herein, and for such other and further relief as to this court may seem just and equitable in the premises. Bush & Perry, [Verification.] Attorneys for plaintiff. FORM No. 701-By real estate agent, for commissions. (In Greenwood v. Burton, 27 Neb. 808; 44 N. W. 28.) [Title of court and cause.] 1. That on or about the 1st day of September, 1888, the plaintiff entered into the service of the defendant, G., at his request, as agent, to trade, exchange, and dispose of certain land described as follows: [Here described]; that plaintiff negotiated the sale of said land belonging to the defendant, G., upon the terms and conditions and at the time agreed upon and suggested by defendant. 2. That the purchaser procured by the plaintiff for the defendant's aforesaid land was then and there willing, ready, and able to complete the purchase of the defendant's real estate upon the terms and conditions fixed and agreed upon by the defendant with the plaintiff. 3. That the plaintiff has duly performed all the conditions of said contract on his part to be performed. 4. That defendant has not paid the plaintiff the said sum, or any part thereof, for the aforesaid services, and there is now due the plaintiff from the defendant therefor the sum of $50, with interest on the same from September 1, 1888. [Prayer, etc.] A. B., Attorney for plaintiff. FORM No. 702-By real estate agent, for commissions for sale executed. (In Griffith v. Woolworth, 28 Neb. 715; 44 N. W. 1137.) [Title of court and cause.] The plaintiff complains of the defendant, and alleges: day of 1. That on or about the 19 the defendant employed the plaintiff to find a purchaser for and to sell for the defendant certain real property, described as follows: [Here described], at a price and upon the terms stated and fixed by defendant, and defendant thereupon agreed to pay the plaintiff for his services, and as his compensation for finding such purchaser and making such sale, the sum of $600. 2. That about the day of 19 this plaintiff found a purchaser, and sold to him for the defendant the said premises at the price and upon the terms stated and fixed by the defendant, and thereupon the defendant became indebted to the plaintiff in the sum of $600 for said services of plaintiff in finding such purchaser and making said sale, and there is now due from the defendant to the plaintiff for said services, as his said compensation therefor, the sum of $600, with interest from the [Concluding part.] day of 19 FORM No. 703-Upon special contract to protect agent in his right to com missions. (In Myers v. Holton, 9 Cal. App. 114; 98 Pac. 197.) [Title of court and cause.] Comes now the plaintiff in the above-entitled cause, and complaining of the defendant, alleges: 1. That the plaintiff resides, and is engaged in the real estate business, in the city of Los Angeles, Los Angeles County, California. 2. That on the 27th day of July, 1905, D. Hutton, for a valuable consideration, executed and delivered to the plaintiff herein an option to purchase the land hereinafter referred to, together with certain other property, which said option is in the words and figures following, to wit: "Searchlight, Nev., July 27, 1905. I, D. Hutton, in consideration of $1.00 do hereby give Lee R. Myers, or his assigns, an option to buy my Colorado River ranch, consisting of 160 acres desert claim, and 160 acres homestead claim, and one store and a business lot in Searchlight, Nevada, free and clear of encumbrance, |
