Kempton

The appeal is on the judgment-roll. The only matter to be determined is whether or not the plaintiff’s cause of action was barred as to appealing stockholders of the defendant corporation under facts appearing in the complaint and findings. .

The plaintiffs sued the corporation and the two principal stockholders. It was alleged that in 1911 the corporation entered into a contract, set forth as an exhibit, to convey to the plaintiffs, upon their payment in installments of $750, a lot of land in Marin County. Payments aggregating $675 were made under the contract and on July 16, 1917, the plaintiffs tendered the balance, demanding conveyance. The defendant corporation refused to convey and it cannot do so. It was alleged “that plaintiffs now elect to treat said inability and refusal of said defendant to perform said contract, as a rescission by said defendant, Floribel Land and Jmprovement Company, a corporation, of said contract, as of date July 16, 1917.” It was further alleged that up to the date of the so-called rescission the plaintiffs had performed all the obligations of the contract binding on them, and that in performance of the contract they had paid to the corporation…