Catling

The Defendant’s Motion to dismiss the First Amended Complaint is based upon two grounds: First, that the facts alleged are not sufficient to constitute a cause of action for fraud, and second, the statute of limitations has expired, and plaintiff has not pleaded facts which would bring them within the exception of West’s Ann. California Code of Civil Procedure, § 338 which does not toll the statute until discovery of the fraud.

Neither point is well taken.

Briefly, the Complaint, in substance, alleges that the plaintiff is an Insurance Company; that the defendant Catling, in 1954, secured by assignment a Management Contract covering the insurance functions of the plaintiff; that said defendant thereby securing control of plaintiff, elected certain directors, appointed officers of the plaintiff, and generally controlled the corporation; that defendant sold to one Messiek the said *687 Management Contract on the representation that Messick could use the sum of $110,000 belonging to the plaintiff to pay Catling for said Management Contract; that thereafter the Board of Directors, controlled by the defendant Catling, authorized Messick to execute and endorse checks drawn on the…