on. Now, the Savage & North Branch Com- the Hampshire Company, and afterwards pany gave to the Hampshire Company, as we paid by Henshaw & Co., and charged in the have seen, its note for $5,440.80, in part set- partnership accounts to Bridon and Gemmell. tlement of the $11,000 advanced by that com- It may not be an easy matter to understand pany for mine improvements. The amount the somewhat conflicting exhibits and statedue on this note was subsequently reduced ments in regard to the dealings and transacby credits to $3,780, and this sum was se- tions between Bridon and Gemmell, involv cured by a mortgage on the property of the ing, as they do, not only their own individual North Branch Company, and which still re- and copartnership dealings, but also their mains unpaid. And the question is, how individual and copartnership dealings with was the balance of the $11,000, amounting the Savage & North Branch Company and to between five and six thousand dollars, paid the Hampshire Company, all of which took to the Hampshire Company? This the bal- place nearly 20 years ago. But there is ance-sheet of Henshaw & Co. made out by enough in this record to show, beyond doubt Bridon himself in May, 1868, shows was paid or question, the payment by Gemmell of his by that firm, and charged to the accounts of part of the original purchase price of the Bridon and Gemmell. This balance-sheet property, and his part, too, of all moneys exshows that Bridon had spent his entire capi-pended in opening and developing the mine, tal, and was indebted to the firm $801.65, and that the 487 shares of stock of the North and among the debits charged to him is the Branch Company were transferred to him in sum of $2,996.28 paid by the firm to the consideration of his ownership in the propHampshire Company, being one-half of the erty which was conveyed to that company; indebtedness of the Savage & North Branch and it shows, too, that Bridon's mortgage to Company. And in Gemmell's account we the Hampshire Company for $6,780 was exefind he has $1,256.89 to his credit, and he is cuted by him in consideration of his own inalso charged with $2,996.28 paid by the firm |dividual indebtedness to that company. to the Hampshire Company, being one-half Passing. then, from the question as to Gemof the amount due that company by the Sav-mell's bona fide ownership of the stock held age & North Branch Company. So, upon the by him, and part of which was transferred face of these accounts, it appears that Hen- to Sinclair, we come to the coal contract beshaw & Co. paid to the Hampshire Company $5,992.56, as a debt due that company by the Savage & North Branch Company, and that one-half of this sum was charged to Bridon, and one-half to Gemmell. Bridon now says this balance-sheet is a mere hypothetical statement, made out by him at the time, for the purpose of showing the interest of each member of the firm, upon the assumption that the Hampshire Company would take the firm for the payment of the Savage & North Branch debt. But this, it seems to us, is entirely inconsistent with Bridon's subse-zation of the North Branch Company in 1868 quent acts and declarations; for, within a few till the summer of 1874 no further efforts weeks after this balance-sheet was made, he were made to work the mine. During that writes to Gemmell, and offers to sell out his latter year, however, owing to the scarcity good-will in the firm of Henshaw & Co., upon in the supply of the big-vein coal, Bridon & being released from the payment of $801.15, Gemmell were led to believe that the Baltibeing the amount due by him to the firm. more & Ohio Railroad Company might be inGeminell afterwards, of his own accord, paid duced to use the six-foot vein coal of the him $1,500 for his interest, and Bridon with- North Branch mine, and to that end all their drew from the firm. Now, if this balance-efforts were directed. Accordingly we find sheet was but a mere hypothetical statement, correspondence and personal interviews bethen Bridon, instead of being indebted to the firm $801.15, would have had to his credit $2,195.13, assuming that Henshaw & Co. had not in fact paid the $2,996.89, as charged in the balance-sheet against him; and Gemmell, instead of having $1,256.89 to his credit, ought to have had $1,256,89 + $2,996.28 $4,283.17. And, if so, Bridon, it is clear, would not have offered to sell his interest in the firm on being released from the payment of $801.15, which, according to his own explanation as now made, he did not owe. And so in regard to the $1,000 paid by Bridon to Gouverneur on account of the purchase of the Langallen property. The amount thus paid by him was advanced by tween Bridon and the Baltimore & Ohio Railroad Company, for the breach of which the judgment of $75,000 was recovered. Bridon was at the time it was made the president of the North Branch Company, and the coal to be delivered under it was coal belonging to the company, and we fully agree with the learned judge below that the contract itself must be treated as a contract in behalf of the company, and the judgment recovered thereon must be treated as a judgment recovered in favor of the company. From the organi tween them and the railroad officials in reference to the matter; and finally, on the 21st day of July, 1874, Gemmell writes to Bridon: "I have the pleasure to inform you that B. and O. Railroad authorities have given orders for the replacement of the N. Branch siding." He then insists as owner of one-half of the stock of the company that its earnings, after the payment of wages, etc., shall be applied to the balance due on the Gouverneur purchase and to the indebtedness to the Hampshire Company; and just here it may be proper, by way of explanation, to say a word about this indebtedness to the Hampshire Company. After the dissolution of the firm of Bridon & Co. by the withdrawal of Gemmell and Ravenscroft in 1870, the business was there- supply of not less than 150 tons, nor more after conducted by Bridon on his own ac- than 300 tons, daily to the company. count under the name of the old firm. He Now, it will be observed that all the negohad resigned as superintendent of the Hamp-tiations leading up to the contract were carshire Company, and Sinclair had been ap- ried on by Bridon, as president of the North pointed to succeed him. The former arrange-Branch Company, and in all of which he had ment, however, by which the goods sold to expressed himself as being anxious and dethe miners were charged to the Hampshire sirous of making a contract in behalf of the Company, and were paid by the latter com- company with the railroad officials; and, furpany out of the wages due the miners, still ther, that the coal to be delivered under it continued, and Bridon still continued from was coal belonging to that company. It can time to time to draw drafts on Gemmell, and hardly be necessary to say that a contract which were paid at maturity by the Hamp-made under such circumstances, although shire Company. In this way it was found, in 1873, that Bridon had overdrawn the wages due the miners to the amount of $7,500, and this amount Gemmell and Sinclair and the Hampshire Company were afterwards obliged to pay, and of this amount Bridon has never paid a dollar. It is this indebtedness that Gemmell in his letter insists shall be paid out of the earnings of the mine. The railroad company continued in October and November the use of the coal, now and then stopping its use because of the complaints of its firemen. It was, of course, of vital importance to the North Branch Company that there should be a contract for the regular supply of a definite quantity of coal to the railroad company; and in a letter to Bridon dated December 3, 1874, Gemmell says: "The redemption of the North Branch Company-of my and your interests-is to get a regular contract with the Baltimore & Ohio Railroad." On the 24th of December, Westhall, the supervisor of engines of the railroad, who had been directed to test the coal, reported favorably, and after his report the use of it by the railroad company largely increased, and by the 1st of May following the quantity delivered exceeded 14,000 tons. There did not now seem to be any apparent difficulty about making a contract for a regular suppply of coal; it was merely a question of terms. After some further correspondence, Sharp, the master of transportation, on 24th of April, wrote to Bridon, requesting him to state the terms on which he was willing to supply the railroad company with coal. Instead of replying at once to this letter, Bridon borrows of H. G. Davis & Co. $3,000, to be applied in the erection of dwelling-houses for miners, and to secure the payment of which he mortgages the property of the North Branch Company. This mortgage is dated May 1st, and on May 4th he replies to Sharp's letter of April 24th, and, after stating the terms on which he is willing to supply the railroad company with coal, he says: "The property I contemplate opening being individual, the contract will require to be made with me personally." Only three days before the date of this letter, the property "he contemplated opening" was the property of the North Branch Company, and as such he had mortgaged it to the Messrs. Davis & Co. Now, however, it was his individual property, and on the 14th May he makes a contract in his own name with the railroad company for the made in his own name, will be treated as a contract made in behalf of the company of which he was the president. And to escape this the attempt is made to prove that the contract in his own name was made with the approval of a majority of the board of directors of the North Branch Company, and was subsequently ratified by them, on condition that Bridon was to pay to the company, as royalty, 10 cents for every ton of coal delivered under it. Now, we do not mean to say the directors of a coal mining company may not, instead of working the mine themselves, lease it upon the payment by the lessee of a royalty to the company on the coal mined, provided the lease is made in good faith, for the benefit of the company, and not to promote the int rests of the lessee to the injury of the stockholders. But, in considering the question as to the bona fides on the part of the majority of the directors in this case, we are not, it must be borne in mind, dealing with a board of directors regularly elected, and to whom the control and management of the affairs of the company is submitted. On the contrary, from the organization of the North Branch Company, in 1868, down to 1876, when it is said Bridon was authorized to make this contract, it does not appear there ever had been a meeting of its board of directors. The entire property belonging to the company was an old coal mine, all efforts to work which had been unsuccessful, and the whole capital stock was owned by Bridon and Gemmell. In addition to this, it may not be amiss to consider who constituted the majority of the directors, the action by whom is relied on to support this contract. First we find W. A. Bridon himself, then E. R. Bridon, his brother, then John C. Brady, his brother-inlaw, and John C. Owens, formerly in the employment of Henshaw & Co.; and Gemmell, a director and owner of half of the stock, not consulted, and not even notified of the meeting at which a contract of such vital importance to the interests of the company was to be considered. Now, if it be true that a majority of the directors, under such circumstances, did in fact authorize Bridon to make a contract in his own name with the railroad company for the supply of 150 to 300 tons of coal daily at $1.15 per ton, upon the payment by him of 10 cents per ton to the North Branch Company, it cannot be said that what was done by the directors was done in good faith for the benefit of the compa- | the wrong complained of, a court of equity ny. On the contrary, it was a plain breach will interfere at the instance of the stockof trust on their part, and in fraud of the holders, and this, too, without proof of a derights of the stockholders. Nor can such ac-mand and refusal on the part of the corporate tion on their part be supported on the ground authorities; and for the reason that a dethat the company itself was without the mand upon them would, under such circummeans or credit necessary to carry out a con- stances, be useless, and, further, that it would tract for the delivery of coal to the railroad be against the plainest principles of justice to company. The proof is all against such a permit the perpetrators of the wrong to concontention. Only a few days before the con- duct a litigation against themselves. Peatract was made we find Davis & Co. loaning body v. Flint, 6 Allen, 52; Brewer v. Theathe company $3,000 on its own credit, and tre Co., 104 Mass. 378; Pond v. Railroad loaned, too, for the express purpose of ena- Co., 12 Blatchf. 280; Salomons v. Laing, 12 bling the company to mine and deliver its Beav. 377; Currier v. Railroad Co., 35 Hun, coal to the railroad. Whatever may have|355; Brickerhoff v. Bostwick, 88 N. Y. 52; been its credit when the mine was idle, and Doud v. Railroad Co., 65 Wis. 108, 25 N. W. there was no demand for the six-foot vein | Rep. 533.`` In this case the wrong complained coal, now, that the Baltimore & Ohio Rail- of is alleged to have been committed by the road Company was willing to contract for president of a company the directors of which the daily supply of 150 tons at least for three are unknown, and the attempt is made to years, there could be no difficulty whatever justify the wrong on the ground that it was on the part of the company in making the done with the approval of a majority of the necessary money arrangements to carry out board of directors. If this be so, the directsuch a contract. In fact, with the Davis ors are not the proper persons to redress the loan of $3,000, and the money in Bridon's wrong complained of, and the appellees, as hands for the 14,000 tons delivered before stockholders, have the right, therefore, to the contract, and the costs of the erection of sue in their own behalf, and in behalf of the the shutes borne by the railroad company, no other stockholders of the company. further arrangements, it would seem, were necessary to enable it to mine and deliver the coal; and besides, if the company was without credit, Bridon was not certainly in any better condition. When Davis & Co. loaned the $3,000, it was not on his credit, but the credit of the company; and they not only required that the entire sum should be expended in mine improvements, but, further, that the money should only be paid as the work progressed; and in addition, and as additional security, Bridon himself says they required the payment of five cents on every ton of coal delivered under the contract. We see nothing in this record, from the beginning to the end, to justify us in saying that Bridon was in any better condition than the North Branch Company to make and car-pose of enabling the company to mine and ry out a contract with the railroad company. So, in any aspect in which this contract is to be considered, it must, in our opinion, be treated as a contract in behalf of the company, and the judgment recovered thereon as the property of the company. We come, now, to the assignment of the judgment to Messrs. Henry G. Davis & Co., and in regard to this we also agree with the judge below that they are not to be treated as bona fide assignees without notice. They are owners of coal land adjoining the North Branch mine, and they knew that this mine belonged to the North Branch Company. They knew, too, that for months before the contract was made, for the breach of which the judgment was recovered, the coal which had been delivered to the railroad company was coal taken from the North Branch mine. Besides this, only a few days before the contract was made they loaned to Bridon, as president of the North Branch Company, $3,000, to be applied expressly for the pur deliver coal to the Baltimore & Ohio Railroad, and they took a mortgage on the property of the North Branch Company to secure this loan. They knew, too, that Gemmell was or claimed to be a stockholder of that company. Bridon himself admits that he And this brings us to the question as to told the Messrs. Davis & Co. about Gemthe right of Gemmell and Sinclair, as stock- mell's claim, and also about the contents of holders, to file this bill, about which so much his letter of March 16, 1875, in which he aswas said in the argument. Now, we quite serts in the most emphatic manner his unagree that all actions in regard to the rights qualified ownership of its stock, and his purand interests of a corporation must, as a pose to defend his title to the same. And in general rule, be brought by the corporation addition to all this, when the case against itself. This is a matter for the corporate au- the railroad company was tried in Howard thorities themselves, and not for the stock-county, Gemmell, in the presence of Mr. holders to determine; and to give the latter Henry G. Davis, a member of the firm, in a standing in court it must appear that the directors have refused to take any action, or that for certain reasons they are not proper persons to be intrusted with prosecuting the suit. If, however, the directors, or officers of a corporation having the authority to direct its litigation, are themselves guilty of his testimony declared he was a stockholder of the North Branch Company. Now, if in the face of these facts they saw fit to advance money to Bridon on the faith of his statements in regard to this contract, and in regard to Gemmell's rights as a stockholder, they did so with their eyes open, and took upon themselves the risk of Bridon's state- | corporation, either actually or virtually, refuses to ments turning out to be true. They had, to say the least, sufficient information to put them upon inquiry. As to acquiescence or tacit consent relied on as a bar to the right of the appellees to file this bill we have but a word to say, for it does not seem to us to have any application to this case. We have been unable to find any proof in the record even tending to show that the Messrs. Davis & Co. were in any manner misled to their prejudice by the acquiescence or conduct on the part of the appellees. They advanced money, it may be, to Bridon, but they did it on the faith of his own statements to them in regard to this contract and his ownership of the mine. They were not misled by the silence of Gemmell, because they had full notice that he claimed to be a stock bring suit. Doud v. Railway Co., (Wis.) 25 N. W. holder of the North Branch Company, and they had sufficient notice to put them on inquiry that the contract, although made in Bridon's name, was in fact a contract in behalf of that company. The money loaned and advanced to Bridon was advanced by them solely with the view of promoting their own interests. They had made a private agreement with him only a few weeks after the contract with the Baltimore & Ohio Railroad Company was made, by which they were to share with him the profits to be derived under this contract, and it was to their interests that this contract should be carried out. We can see no ground on which it can be said they were either misled or influenced by the conduct of the appellees. Nor do we see any ground on which Gemmell can be charged with delay or laches. He knew, it is true, that the contract was made in Bridon's name, but then Bridon told him that this was a mere matter of form, and that the contract was in fact the company's contract. Bridon was the president of the company, and the contract was in his name, and suit was brought by him, and when the case was tried, in 1877, the jury failed to agree upon a verdict. No further steps were taken by him to bring the case to trial till 1885, when this judgment was recovered, and on the day it was rendered it was entered to the use of Messrs. Henry G. Davis & Co. This bill was filed by the appellees in 1886. If there was any delay in prosecuting the suit to judgment after the first trial, it was the delay of Bridon, and not (Court of Appeals of Maryland. Mårch 26, 1889.) the delay of the appellees. We do not deem SLANDER-PLEADING AMENDMENT-EVIDENCEit proper now to pass upon the question as to the payment of counsel fees. This is a matter to be considered upon final hearing, when all the creditors shall have had the opportunity of coming in and of being heard. From what we have said, it follows that the order of the court below must be affirmed. Order affirmed, and cause remanded. Courts of equity have jurisdiction, at the instance of one or more stockholders, to restrain the directlation of the charter, or to prevent any misapplica ors from doing acts which would amount to a viotion of the funds which would lessen the value of the stock, Wilcox v. Bickel, (Neb.) 8 N. W. Rep. 436; and to compel payment of dividends to prethem, when the finances of the corporation justify ferred stockholders, equitably entitled to receive it, and the directors have refused or neglected to make the payment, Hazeltine v. Railroad Co., (Me.) 10 Atl. Rep. 328. But, to enable a stockholder to recover from a corporation for depreciation in his stock by mismanagement, he must show that the injury was peculiar to himself alone, apart from other stockholders. Oliphant v. Mining Co., (Iowa,) 19 N. W. Rep. 212. BLUMHARDT v. ROHR. (70 Md. 328) INSTRUCTIONS-APPEAL-REVIEW. 1. A narr. for slander averred that on a certain day, plaintiff then being, as he still is, engaged in the "business of butchering cattle for sale," defendant uttered concerning him and his business the words: "It is better to buy western beef than to buy beef from a slaughter-house where condemned and diseased cattle are slaughtered;" and the words: "Did you hear of those diseased stillery bulls [plaintiff] was getting, and selling the meat at 4 and 4 cents, and bulls are selling for that; it is cheaper to buy the meat than bulls. Held, that the words as thus set out were actionCORPORATIONS--RIGHT OF STOCKHOLDER TO SUE able per se, and a colloquium was unnecessary. -REFUSAL OF DIRECTORS. No suit for equitable It sufficiently appeared that plaintiff was engaged relief can be maintained against directors and offi- in killing and selling cattle for human food, escers of a corporation for mismanagement and neg-pecially where the innuendo averred the meaning ligence by the stockholders individually, unless the to be that plaintiff was slaughtering and selling NOTE. the carcasses of diseased cattle for meat and human food.1 2. Injury is implied from the use of such words, and there is no error in the admission of testimony that witness cannot tell how much reports of this sort injured plaintiff's business, and that he should think it would necessarily injure it. Action by Charles Rohr against Charles G. Blumhardt for slander. Plaintiff was permitted to amend his declaration by adding the third and fourth counts. Plaintiff's third and fourth prayers for instructions were: "(3) If they find their verdict in favor of the plaintiff under either of the preceding instructions, the measure of damages is such an amount as in the opinion of the jury will compensate the plaintiff for the injury to his feelings and character occasioned by the words so spoken, and also for 3. Plaintiff's testimony as to the number of cattle killed by him per week before the slander and the number killed afterwards went to the question of general, and not special, damages, and exception to it as evidence of special damage not au4. Issue having been joined in the plea of the truth of the alleged defamatory words, evidence that plaintiff was not selling meat diseased or un-such injury as was the natural, direct, and thorized by the declaration is not well taken. fit for human food, and therefore evidence as to the stage of pleuro-pneumonia at which the meat becomes diseased, is proper. 5. The admission of evidence that proper precautions for destroying diseased animals were taken at plaintiff's place of slaughtering, and testimony as to the construction of the buildings given by an expert, and as to the condition of the premises, is not reversible error. 6. For the purpose of contradicting a witness as to certain sales at stated prices, plaintiff's books of original entries, made by his book-keeper, contemporaneously with the transactions, and known by such book-keeper to be truthful and accurate, would be admissible, on proof of those conditions, and, the evidence having been admitted, it will be presumed that there was such proof, in the absence of showing to the contrary. 7. The exclusion of evidence of a conversation with plaintiff's agent in reference to the condemned or diseased meat cannot be held erroneous where it does not appear what the alleged conversation was. 8. The butchers, including defendant, had formed a union to exclude western meat, and defendant was accused of having bought western meat, and afterwards withdrew from the union. Defendant was twitted of doing so, and replied with the charges against plaintiff, who was the only butcher then engaged in killing. Held, that a refusal to charge that there was no evidence of express malice was proper, especially as defendant pleaded the truth of the defamatory utter ances. reasonable consequence of such words, and they may also award exemplary and punitive damages as a punishment to the defendant. (4) The word 'malicious' in this form of action is not to be considered in the sense of spite or hatred against a person, but as meaning that the party is actuated by improper and indirect motives other than the mere purpose of protecting the public health, or vindicating public justice.' Defendant appeals. Argued before MILLER, ROBINSON, IRVING, STONE, YELLOTT, BRYAN, and McSHERRY, JJ. Wm. H. Harlan, and J. Edwin Webster, Hanson P. Jordan, Rufus E. Jordan, for appellant. T. A. Seth, D. G. McIntosh, and S. A. Williams, for appellee. IRVING, J. The appellee sued the appellant for slander. The narr. contained four counts, alleging in various words and forms the slander claimed to have been uttered injuriously to the plaintiff's business and character. The appellant pleaded not guilty, and justification, because that which was alleged to have been spoken was true. As the circuit court instructed the jury that there was no evidence upon which the appellee could recover under the first and second counts of his declaration, the only counts now under consideration are the third and fourth, under which recovery was permitted and obtained. As questions arise involving the sufficiency of these counts to support the licious" in such action is not to be considered in that on or about the 23d day of July last 10. It was proper to instruct that the word "ma- action, we insert them here: "(3) And for the sense of spite or hatred, but as meaning that the person is actuated by improper and indirect past, the plaintiff then being, as he still is, motives other than the mere purpose of protecting engaged in the lucrative and profitable busithe public health, or vindicating public justice. ness of butchering cattle for sale, the defend11. An instruction that if the jury find certain facts they must find for plaintiff is not objection-ant well knowing the premises, and contrivable for not stating that they must find from the 9. Plaintiff not having asked in his prayers the consideration of loss of any individual customers not named in his narr., or in relation to which some evidence was not given, it was proper to instruct that the measure of damages is such an amount as will compensate plaintiff for injury to feelings and character, and for such injury as was the natural, direct, and reasonable consequence of such words, and that exemplary and punitive damages may be awarded. evidence. 12. A prayer for instructions, including among several propositions an erroneous one, is properly refused. 13. Where leave is given to add certain counts to the narr. filed in an action for slander, it is not necessary to append to them a claim for damages, as they would be introduced in numerical order so as to precede the general claim of dam ages. Appeal from circuit court, Harford county; JAMES D. WATTERS, Judge. 1 In general, as to what words are actionable per se, see Stewart v. Tribune Co., (Minn.) 41 N. W. Rep. 457, and note; Publishing Co. v. Crudup, (Ala.) 5 South. Rep. 332, and note; Godshalk v. Metzgar, (Pa.) ante, 215, and note. ing to injure the plaintiff in his said business, at Lexington market in the city of Baltimore, in the presence and hearing of George Long, Abraham Frank, and many other persons, spoke and uttered of and concerning the plaintiff and his said business the false, malicious, and slanderous words following, to-wit: It is better to buy Western beef than to buy beef from a slaughterhouse where condemned or diseased cattle are slaughtered,'-meaning thereby that the plaintiff kept such a slaughter-house, and that the plaintiff was slaughtering and selling the carcasses of diseased cattle for meat and human food; whereby the plaintiff suffered great loss and damage to his said busi |