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Wakeman v. Paulson

February 23, 1973

WAKEMAN, APPELLANT,
v.
PAULSON, DEFENDANT, PEAKE, RESPONDENT



Appeal from Circuit Court, Multnomah County. Phillip J. Roth, Judge.

Gerald R. Pullen, Portland, argued the cause and filed a brief for appellant.

Theodore S. Bloom, Portland, argued the cause and filed a brief for respondent.

In Banc. McAllister, J.

Mcallister

The plaintiff brought this action to recover judgment against the directors of a corporation for a debt owing to plaintiff by the corporation. Plaintiff appeals from an adverse judgment. We affirm.

There is little dispute about the facts, most of which are documented. The plaintiff Wakeman was hired in September 1967 as sales manager for Beer Boy Corporation, an Oregon corporation.*fn1 In May 1968 his services were terminated and in August 1968 Wakeman sued Beer Boy and its president John K. Paulson for commissions allegedly due him by Beer Boy. On August 5, 1969, Wakeman recovered judgment against both Beer Boy and Paulson for $8,007. That judgment was appealed to this court and affirmed as to Beer Boy, but reversed as to Paulson. See Wakeman v. Paulson, 257 Or 542, 480 P2d 434 (1971).

On May 5, 1971, Wakeman brought this action against the three directors of Beer Boy asking the court to require them to pay his judgment against Beer Boy. The defendants John K. Paulson and

Leslie Peake were two of the three directors of Beer Boy. The other director, McNamara, was never served and is not involved in this case. The defendant Paulson, prior to the trial of this case, paid Wakeman $4,400 for which he received a covenant not to execute against him on any judgment entered in this case. The case thereafter proceeded to trial by the court without a jury against the defendant Peake.

In our view the dispositive issue is whether this is an action at law. If so, the findings of the trial court in favor of the defendant are fully supported by the evidence, are binding on us, and the judgment must be affirmed.

In his original complaint plaintiff alleges "his cause of action" and prays only for a money judgment against the defendants. He does allege that Beer Boy was dissolved on or about May 14, 1969, and that defendants received in excess of one million dollars in personal property as their share of the assets distributed upon dissolution of the corporation and concludes by alleging that "the Supreme Court of Oregon having ruled that plaintiff is entitled to pursue his judgment against said assets, it is reasonable and equitable that defendants pay to plaintiff the sum of $8,007", plus interest and costs.*fn2

In his amended complaint plaintiff alleged that defendants were shareholders of Beer Boy, that there were approximately 400 other shareholders, whose identity was unknown, that Beer Boy was dissolved on May 14, 1969, that defendants received in excess of one million dollars "in personal property as their share of the assets distributed upon dissolution of said corporation" and that "it is ...


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