properly, so far as this bill discloses, have "This raises numerous and difficult questions. It must be determined whether the present stockholders or any of them are entitled to complain of the acts of the defendant and of his past management of the company; for if any of them are so entitled, there can be no doubt of the right and duty of the corporation to maintain this suit. It would be maintainable in such a case even though the wrongdoers continued to be stockholders and would share in the proceeds. 1 Morawetz, Private Corporations, § 294." In that case all of the stock had changed hands-the parties in control owning every share of it. The court, therefore, considered the other questions raised, and said, amongst other things: "Sound reason and good authority sustain the rule that a purchaser of stock cannot complain of the prior acts and management of the corporation"-citing Hawes v. Oakland, 104 U. S. 450, 26 L. Ed. 827; Dimpfel v. O. & M. R. Co., 110 U. S. 209, 3 Sup. Ct. 573, 28 L. Ed. 121; Taylor v. Holmes, 127 U. S. 489, 8 Sup. Ct. 1192, 32 L. Ed. 179; Southwest Nat. Gas Co. v. Fayette Fuel Gas Co., 145 Pa. 13, 23 Atl. 224; Alexander v. Searcy, 81 Ga. 536, 8 S. E. 630, 12 Am. St. Rep. 337; Clark v. Am. Coal Co., 86 Iowa, 436, 53 N. W. 291, 17 L. R. A. 557, and other cases, as well as 4 Thomp. on Cor. § 4569. He further said that: "Such a stockholder ought not to be allowed to sue unless the mismanagement or its effects continue and are injurious to him, or it affects him specially and peculiarly in some other manner." Again he said that: "Stockholders who have acquired their shares and their interest in the corporation from the alleged wrongdoers and through the prior mismanagement. have no standing to complain thereof." court. In Venner v. Great North. R. R. Co., 209 U. S. 24, 28 Sup. Ct. 328, 52 L. Ed. 666, Justice Moody said, in speaking of that rule: "But this argument overlooks the purpose and nature of the rule. The rule simply expresses the principles which this court, after a review of the authorities, had declared in Hawes v. Oakland (Hawes v. Contra Costa Water Co.), 104 U. S. 450 [26 L. Ed. 827], to be applicable in the decision of a stockholder's suit of the kind now under consideration." There is, then, much to be said in favor of the construction placed on the rule by Judge Pound. In addition to the authorities cited in Barber's Case, there are other decisions by state courts which deny the right of subsequent stockholders to sue if their vendors are estopped from suing by their participation, acquiescence, etc. Just v. Idaho Canal & Im. Co., 16 Idaho, 639, 102 Pac. 381, 133 Am. St. Rep. 140; Schilling & Schneider Brewing Co. v. Schneider, 110 Mo. 83, 19 S. W. 67; McCampbell v. F. H. R. Co., 111 Tenn. 55, 77 S. W. 1070, 102 Am. St. Rep. 731; Trimble v. Am. Sugar Ref. Co., 61 N. J. Eq. 340, 48 Atl. 912; Boldenweck v. Bullis, 40 Colo. 259, 90 Pac. 634; Erny v. G. W. Schmidt Co., 197 Pa. 484, 47 Atl. 877; Babcock v. Farwell, 245 Ill. 41, 91 N. E. 683, 137 Am. St. Rep. 284, 19 * If the stockholder "has himself consented to or participated in the acts constituting such wrong, or has waived his right to object to them, he cannot afterwards maintain a bill, on account of such transactions, for the benefit of the corporation or of other stockholders. * Neither can an assignee of stock maintain a suit in regard to transactions with the corporation done or assented to by his assignor. The purchaser of shares of stock acquires no greater rights than his vendor. He holds by the same title and subject to the same liability." See, also, 4 Thomp. on Cor. (2d Ed.) § 4631; 10 Cyc. 974. In McCampbell v. F. H. R. Co., supra, Chief Judge Beard refers to numerous authorities, including leading text-books on corporations and decisions of courts, on acquiescence, laches, etc. In Pollitz v. Gould, 202 N. Y. 11, 94 N. E. 1088, 38 L. R. A. (N. S.) 988, Ann. Cas. 1912D, 1098, one of the cases relied on by the appellee, it is said: "If the prior holder should give binding consent to the transaction, this under certain circumstances undoubtedly would prevent the subsequent purchaser from questioning it. But, in the absence of special circumstances, I fail to The court in that case said the rule that see any principle of estoppel or logic which a suit for mismanagement cannot be main-makes a subsequent purchase of stock so subject to a fraudulent corporate transaction that the tained by one not a stockholder at the time purchaser may not insist upon its being set had been criticized as based on jurisdiction- aside." al considerations peculiar to the federal Even in Alabama where the court has gone courts and on obsolete common-law doctrines as far as any we are aware of, in sustaining as to champerty and maintenance, and add- the right of a transferee to maintain a suit, ed, "In our judgment it does not depend up-it was held in Parsons v. Joseph, 92 Ala. 405, on either," and discussed the federal equity rule. While it is true that the Supreme Court did adopt a rule which is known as the ninety-fourth rule in equity, Judge Pound pointed out that in doing so the question of "By the weight of American authority, a 8 South. 788, that a transferee having notice that the transferor was barred cannot sue. In 2 Machen on Corporations, § 1169, it is said: holder's bill on account of any transaction in [ not be contended that the assignees of such which the transferor has acquiesced." stock could go behind the affirmance and re In Tompkins v. Sperry-Jones & Co., 96 Md. cover, at least unless there were creditors. 560, 583, 54 Atl. 254, 259, we said: It would place a premium on speculations in stocks and make a court of equity an instrument of injustice, if that were allowed. If then the owners of at least three-fourths of the stock were estopped from taking any action, and a controlling interest in the com "In fact the bill does not allege that any of the present bond or stockholders were the original holders of those securities or that they received them from the defendants or from either of them. Such an allegation has in several cases been held to be necessary to enable a receiver to maintain a suit of this character, even when it is free from the other objections exist-pany has been obtained from one of them, ing in the present case. Dimpfel v. O. & M. R. Co., 110 U. S. 209, 210 [3 Sup. Ct. 573, 28 L. Ed. 121]; Robinson v. W. V. Loan Co. [C. C.] 90 Fed. 770-772.” It will be remembered that the Dimpfel Case is one of those quoted in Barber's Case, supra. why should the assignees be in any better position to institute proceedings than if all of the former stockholders were estopped, excepting in so far as it may be necessary to protect those who were minority stockholders at the times of the transactions complained of and are not barred? We can see no valid distinction between the two, although it must be admitted that some authorities seem to hold the contrary. [2, 3] If this was a suit by stockholders, it would seem to us to be clear that holders of the stock who became such after the transactions complained of took place should not be [7, 8] Of course, we recognize the fact that permitted to recover against the directors. the title to property is in the corporation, The payments of the salaries to Matthews and not in the stockholders, but if the latand Headley were not void, but only void-ter have no standing in a court of equity, able, if they are admitted to have been exces- they cannot obtain relief by the use of the sive. It is not contended that the directors company's name. As said by Judge Pound were not authorized to allow them such sala- in Barber's Case, supra: ries as properly compensated them for their "It would be a reproach to courts of equity if services, taking into consideration their val- this were not so. If a court of equity could not ue to the corporation, the results accomplish-who are the real and substantial beneficiaries, look behind the corporation to the shareholders, ed by them, and other things which fairly and ascertain whether these ultimate benefientered into a proper consideration of the ciaries of the relief it is asked to grant have any amount they should be paid. By the general standing to demand it, the maxim that equity corporation laws of this state in force when looks to the substance and not the form would be very much limited in its application." this company was chartered, it was authorized to appoint a president from among the directors, and such officers or agents as its business required, and "to allow them a suitable compensation." Section 62 of article 23,porate name-the mere shadow-to be interposed Code of 1904. By the new corporation laws (chapter 240 of Acts 1908) it is provided that: "The board of directors may exercise all the powers of the corporation, except such as are by law or by the certificate of incorporation or by the by-laws conferred upon or reserved to the shareholders or members," etc. Section 10 of article 23 of Ann. Code. [4, 5] The court would not be authorized to substitute its judgment for theirs as to what are proper salaries, provided they acted in good faith within their powers, and the salaries fixed by them were not clearly excessive. Even if it be found that the salaries were excessive, or the additional compensation allowed the officers at the end of the year 1910 were excessive or improper under the circumstances, those acts are not void, but only voidable. Those who held over 75 per cent. of the stock were the same persons who constituted the board of directors, and it is clear under the authorities that they should not be given relief in a court of equity from what they themselves did, when acting in the capacity of directors. [6] We are also of the opinion that the assignees of Matthews are likewise not entitled to recover. If a voidable act is affirmed by all the stockholders and afterwards a major Judge McSherry said in Pott & Co. v. Schmucker, 84 Md. 535, 553, 36 Atl. 592, 596 (35 L. R. A. 392, 57 Am. St. Rep. 415): "The law will not in any case suffer the corfor the purpose of defeating substantial rights depending for their ultimate vindication not upon the accidental form of a transaction, but upon its inherent equity and justice.' See, also, Swift v. Smith, 65 Md. 428, 5 Atl. 534, 57 Am. Rep. 336; Tompkins v. SperryJones & Co., 96 Md. 583, 54 Atl. 254, where it was said: "They at that time held all of its stock and were the sole owners of the company. They were in equity the company itself." Many other authorities might be cited, but a great many are collected in Barber's Case, McCampbell's Case, supra, and others cited in this opinion, and we will content ourselves by referring to them. [9, 10] If the minority stockholders are not barred by laches, acquiescence or in some way, they are entitled to relief, if they can satisfy the court that the payments were excessive or unauthorized. Under our decisions the corporation is primarily the party to proceed in such cases, and it is only when it is under the control of those complained of, and they will not act, or if they did act they could not be relied on to do justice to the other stockholders, that the latter are permitted to sue in their own names, unless they have suffered some peculiar injury in Booth v. Robinson, supra; Fisher v. Parr, us, where reason and every equitable considera32 Md. 245, 48 Atl. 621. tion point the way with so much clearness." [11] The question then is whether this bill can be sustained in the name of the corporation, and, if so, how the defendants can be protected from claims we have spoken of as not entitled to relief. Inasmuch as by the change of the majority of stock those who were minority stockholders at the time of the transactions complained of are now able to have the suit brought in the name of the company, we are of the opinion that it can be maintained, in that name, instead of in the names of the minority stockholders but for their benefit. But while that is so, if there be any recovery by reason of the claims spoken of, it can only be to the extent of the proportions of the sum recovered due such minority stockholders, if any, as are not barred by laches, limitations, acquiescence, or other way sufficient to bar them in equity, and anything recovered should be directed to be paid to them by the corporation. Any defense that could have been made against the minority stockholders if they had sued in their own names should be allowed, notwithstanding the fact that the suit is in the name of the corporation. It seems to us that that course is the only one which in equity and justice can be adopted in this case. The purchasers from Matthews have lost nothing, so far as the bill discloses, and if he deceived them in the sale, they have their remedy against him individually, but they should not be permitted to use the corporate name to veil defects in the title to the stock transferred to them by the former stockholder who received about two-thirds of the amounts claimed to have been improperly paid. What was done in Brown v. De Young, 167 Ill. 549, 47 N. E. 863, can very appropriately be adopted in this case, although that was a suit by stockholders. There it was conceded that De Young was only entitled to receive $500 a year, and that he did receive when he was secretary $2,500 a year, and while secretary and treasurer $3,500 a year, but with the knowledge and consent of the holders of the majority of the stock; some of the minority stockholders not being aware of it. The court held that ordinarily in a suit to compel the restoration to a corporation of misappropriated funds, it is proper to require it to be paid to the corporation, and not to the stockholders personally, but, "to work out relief in this case through the treasury of the corporation, in the ordinary way, is to place the undeserving upon equality with the meritorious," and later on said: "Perhaps for the reason that no such case was ever before complained of, we have been referred to no authority, and know of none, for affording certain relief to the innocent stockholder without giving the culpable one what he is not entitled to, as would be the result if the money be decreed to be paid, generally, into the corporation treasury. But the lengthening reach of equity into the manifold intricacies of modern business should not be drawn back sim Again it was said: "Having jurisdiction to compel De Young to account for the salary wrongfully received by him, it strikes us as being a manifest falling to compel the application of so much of such short of appropriate relief to deny jurisdiction money in a manner that will give to them who have been injured and are in a position to complain their just proportion of it, and to refuse any part of it to them who are not equitably entitled to it." The good sense and justice of that reasoning appeal to us as a happy solution of the difficulties of such a situation. As stockholders are supposed to sue for the benefit of the corporation when its hands are tied by the majority who are charged with using it for their own or other illegal purposes, if the course pursued in Brown v. De Young can be properly adopted in that class of cases, as we think that and some other cases cited clearly show, we can see no reason why it cannot be done under the circumstances in this case, where the suit is brought in the name of the corporation. If no precise precedent be found, then what we have quoted from Brown v. De Young furnishes sufficient reason for making one. There are, however, other cases which tend to sustain that course of procedure. In Emerson v. Gaither, 103 Md. 564, 64 Atl. 26, 8 L. R. A. (N. S.) 738, 7 Ann. Cas. 1114, the suit was by a receiver of an insolvent bank against directors for illegal and negligent acts, amongst others for de claring dividends when the bank was in such condition that they could not be lawfully declared. We said on page 581 that the bill did not show whether the creditors had been paid in full, but "if they have, manifestly the receiver should not be permitted to recover for the benefit of the stockholders by reason of the declaration of dividends, inasmuch as the stockholders themselves received the dividends and should not be permitted to hold the directors responsible for them." In that case the court announced a rule which may not be in accord with the decisions of some other courts, but in our judgment it is certainly the just one. would be very unjust to require the defendants who have been summoned to pay the whole amount, if any, which may be found to have been improperly paid Matthews and Headley, and then let Headley have his portion and the transferees have the portion had not sold the stock, and all the money which would have gone to Matthews, if he was required to be paid to the corporation. In Eaton v. Robinson, 19 R. I. 146, 32 Atl. 339, 29 L. R. A. 100, the court held that: It "Where directors of a corporation wrongfully appropriated money in salaries to themselves, the court may, in an action by the minority stockholders against the majority and the corporation, when the prayer is ample, decree direct payment by the majority stockholders, who were directors, to the minority, of their aliquot share Inasmuch, then, as we are satisfied that there should be no recovery for the benefit of the transferees of Matthews, or for any of the shareholders who acquiesced in the payments complained of, but as the corporation is primarily the party to sue, when it can be induced by minority stockholders to sue, we are of the opinion that the above is the proper course to pursue. The corporation is in the nature of a trustee suing for its cestui que trust. That course does justice to every one, if there be a recovery. Some of the cases seem to go so far as to hold that where there is one innocent stockholder, in a suit in the name of the corporation, the whole amount found to be due must be recovered on the principle apparently that, "A little leaven leaveneth the whole lump," but we cannot apply that doctrine to a case such as this. Inasmuch as over five years elapsed before suit was brought after the extra compensation was paid to Matthews and Head ley, and more than three years elapsed after the payment of the larger salaries complained of, the court should be thoroughly satisfied that such minority stockholders as claim to be entitled to be paid were not guilty of laches, that there was no acquiescence on their part, etc., before allowing anything for them, if there be any recovery. [12, 13] We do not think the point made by the appellants that fraud is not alleged with sufficient definiteness is tenable. Although we have referred to contradictory and inconsistent statements, yet there is sufficient alleged in the bill. Nor do we think that the question of limitations or laches is reached by the demurrers, so as to enable us to properly pass on them. The bill alleges that the stockholders were kept in ignorance of the transactions, and while it indicates that the resolution of December, 1910, and the amounts of salaries paid were to be found in the books, and although sections 72, 73, and 74 of article 23 might afford minority stockholders opportunity to know what is on the books, such matters can only be determined when the facts are known. The demurrers were to the whole bill, and as we think the bill is sufficient to require answers, we will affirm the order overruling the demurrers. Answers can be filed within such time as the lower court allows after the mandate from this court is received. Order affirmed, the cause remanded for further proceeding; the costs to abide the final determination of the case. she was working was opened by a coemployé, where it appeared that she did not know of and ant's negligence was for the jury. had not been warned of its existence, defend [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1044.] Appeal from Court of Common Pleas, Allegheny County. Trespass to recover damages for personal injury by Margaret Williams against George F. MacDonald. Verdict and judgment for plaintiff, defendant's motions for new trial and for judgment n. o. v. overruled, and defendant appeals. Affirmed. The facts appear in the following opinion by Davis, J., sur defendant's motion for a new trial, and for judgment n. o. v.: The plaintiff was an employé of the defendant, and while performing her duties was injured by fendant's place of business, caused by a trapfalling through an opening in the floor in dedoor which was suddenly opened from the cellar by a coemployé. The trapdoor was back of the counter even with the floor, and was used with weights, by reason of which it could be opened easily either from above or below by any person who desired to go into or out of the cellar. The evidence further showed that hinges on the upthe side or wall, the means which were employed per side of the door could be seen, and also along in the opening and operation of the door. The plaintiff had worked for the defendant about three months prior to the accident, and her duties required her to pass frequently over the trapdoor during part of each day. The trapdoor was used by other employés of the defendant in obtaining supplies from the cellar, especially in the morning and late afternoon, when plaintiff was engaged in other duties which did not require her to go back of the counter, over or in proximity to the trapdoor. The plaintiff testified that she did not know and had not been informed of the existence of the trapdoor; that she never had seen the trapdoor in place, and had never seen it opened or used. It was the duty of the defendant to provide a reasonably safe place for the plaintiff to work. It was a reasonably safe place to work while the door was in place even with the floor, and the only part of the door which might cause an accident were the hinges on the upper face of the door. The danger was that the door might be suddenly opened by some one from the cellar, leaving an opening into which any person near the door might step and fall. The plaintiff was performing her duties right beside the door, and when the door was suddenly opened, without her knowledge, she stepped into the hole and fell. The defendant owed the plaintiff of the door and the signals that were used, or the further duty to give her warning of the use directed to be used, when any one in the cellar desired to open the door. The testimony was that any person using this place of egress gave three knocks on the door as a warning, and then to push, and the door would open by means of the weights. The defendant presented a point for binding instructions, and now asks that this rule for judgment non obstante veredicto be made absolute. We are of the opinion that defendant's negligence under the evidence was a question of fact for the jury. The reasons urged for judgment non obstante veredicto in the argument of the case at bar were: (1) "The proximate cause of the injury was the negligence of a fellow servant with the plaintiff;" (2) "the plaintiff was guilty of contributory negligence;" and (3) "the plaintiff assumed the risk of the employment." There was no evidence in the case showing that the coemployé who opened the door was guilty of any negligence. He was engaged in. the performance of his duties in the usual way with the right of egress by way of the trapdoor. The uncontradicted testimony shows that he gave the usual warning before he opened the door. The question of plaintiff's contributory negligence, if any, was submitted to the jury; also the question of assumed risk was submitted to the jury; and all questions have been determined in favor of the plaintiff. We are therefore of the opinion that this case under the evidence could not have been taken away from the jury, and that the rule for judgment non obstante veredicto should be discharged. Verdict for plaintiff for $6,000, and judgment thereon. Defendant appealed. Errors assigned were in refusing to direct a verdict for defendant, and in refusing to enter judgment for defendant n. o. v. Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRAZER, JJ. Wm. W. Wishart and J. Roy Dickie, both of Pittsburgh, for appellant. Rody P. Marshall and Thomas M. Marshall, both of Pittsburgh, for appellee. PER CURIAM. The nature of this case and the reasons why it was for the jury appear in the concise and clear opinion of the learned court below overruling the motions for a new trial, and for judgment p. o. v. The two assignments of error, which raise but a single question, are overruled, and the judgment is affirmed. (256 Pa. 201) In re WARTON'S ESTATE. (Supreme Court of Pennsylvania. Jan. 8, 1917.) WILLS 166(1) UNDUE INFLUENCE - EVI DENCE. On a petition by son and legatee for an issue devisavit vel non on the ground that undue influence was used to obtain the execution of the will, evidence held not to show any undue influence, so that the issue was properly refused. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 421.] Appeal from Orphans' Court, Allegheny County. Petition by Benjamin Warton, a son and legatee, for an issue devisavit vel non in estate of Sarah Jane Warton, deceased. From a decree of the Register of Wills refusing the issue, petitioner appeals. Affirmed. Trimble, J., in the orphans' court filed the following opinion: his office, and told him how she desired to dispose of her estate; he took memoranda, and afterwards from these prepared the will in accordance with her request. It was delivered by counsel to the testatrix, who informed him that she desired to have it executed at the office of her family physician, Dr. Davis, a reputable man of this city. At the time and place appointed she appeared, and in the presence of Dr. Davis and Mr. Smith, and no person else, executed the will. There was nothing to show that she was not in good physical and mental condition at that time, or that she had been influenced in any manner in disposing of her estate. After the will was executed, the testatrix took it and kept it in her possession, and after her death it was found folded up in an old ledger in her room. So far as the evidence shows, no person except the testatrix and her counsel knew anything about the contents of the will until after her death. * In Phillips' Est., 244 Pa. 35, at page 43, 90 Atl. 457, at page, 460, it is said: "When a will is attacked on the ground of undue influence, it is necessary to bear in mind the meaning of the term; * as a legal phrase it is used as denoting something violative of legal duty. The word 'influence' does not refer to any and every line of conduct capable of disposing in one's favor a fully and self-directing mind, but to control acquired over another which virtually destroys his free agency. In order to constitute undue influence sufficient to void a will, there must be imprisonment of the body or mind, * * fraud, or threats. or misrepresentations, or circumvention, or inordinate flattery, or physical or moral coercion, to such a degree as to prejudice the mind of the testator, to destroy his free agency, and to operate as a present restraint upon him in the making of the will." The only question with which we are con cerned in this case is whether there were sufficient facts shown by the evidence, or offered to be shown, which would measure up to the standard of proof required by the law to make void the will of this testatrix. It is noted that when any fraud, sufficient to deprive a will of its legal efficacy, is shown in any case, its undue influence must be present at the time of the execution of the will, and a careful search and consideration of the testimony, and the offers to prove facts, reveal nothing which does or could indicate that there was any fraud present when the deceased executed her will. The subscribing witnesses are both reputable men, and there is not a suggestion that either one of them knew of anything improper which was done, or attempted to be done, by any person either before or at the time of attesting the will. Great reliance was placed upon the fact that the decedent's daughter declared that she would not go for a lawyer at the request of the testatrix in order that she might rewrite her will in her last sickwould be relevant if the petitioner had shown ness, and shortly before she died; but, while this that undue influence had been used at the time of the execution of the will by this daughter, or some other person or persons, thereby causing its execution, and if she or they had kept the This is a proceeding for an issue devisavit testatrix imprisoned in body or mind subsequent vel non. The testatrix executed her will on the to the execution of the will and continuously 29th day of July, 1911, and died on March 28, thereafter until her last sickness, when she re1914. Mary C. Rhine, a daughter of the testa-quested some person to destroy her will and trix, was appointed executrix and trustee by the desired to have another written, and was prewill, and on April 13, 1914, letters testamentary vented from so doing, yet without such proof, were granted to her. A petition was filed by evidence that the daughter refused to call a Benjamin Warton, a son and legatee, who al- lawyer to write a new will, is worthless. The leges that undue influence was used to obtain the weakness of this case is emphasized when we execution of the will. It is not alleged that the consider that the testatrix kept the possession testatrix was incompetent. The testatrix em- of her will from its date until her death, almost ployed Mr. Ralph L. Smith, a member of the three years, during which time it could have bar, as her counsel, to advise her in the making been destroyed by her at any time, and this, toof the will, and to draft it for her. She visited gether with the absence of any undue influence |