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owner's hands as an ice cream manufactory. In view of such a situation, the clause of the lease in question was framed, that "all improvements or additions made by the lessee shall not be detached from the property, but shall remain for the benefit of the lessor." Though awkward and somewhat obscure, grammatically, the meaning of this clause is sufficiently plain, and the evident intention of the parties can be gathered therefrom.

The referee states the situation as follows: “In fact all the items claimed by the trustee, which are 1 twin mixer, 4 freezers, 1 washer and sterilizer, all motors, shafting and belting, brine pump, german silver connections between mixer and freezers, are attached by bolts and nuts, as described, but though they can be removed without injury to the freehold as it stands, yet the building having been converted from a stable to a building especially adapted for the purpose of manufacturing ice cream, after the removal of the property claimed by the trustee, it would be unfit for either a stable or a residence, and would be manifestly in an unrentable condition."

Clearly the language of this clause could only be applied to property that was thus attached to it, and was therefore of a character to be "detached.” No such language was necessary to prevent the tenant from taking out floors, beams, and structures which had been incor- · porated and made part of the building. One does not speak of such things as being either attached or detached. The word "detached" is the antithesis of "attached.” The property forbidden to be detached by the lessee was necessarily property that had been attached. In this respect, the law of the contract differed from the common law as to trade fixtures. In order that the contention on behalf of the trustee be sustained, it would only have been necessary to have left this clause out entirely and the common law would have protected in favor of the owner all the permanent additions and improvements that went into the structure of the building itself and permitted the only articles to which the clause could apply to be removable by the lessee as trade fixtures.

We agree with the court below that the ratio decidendi of Isman v. Hanscom, supra, must be recognized as controlling in the present case, although, as this court says in the Montello Brick Co. Case, 167 Fed. 482, 484, 93 C. C. A. 118, 120:

"No general principles of law are involved. The case turns on the meaning of this particular lease.”

The case of Lindsay Bros. v. Curtis Pub. Co., 236 Pa. 229, 84 Atl. 783, decided by the Supreme Court of Pennsylvania and not yet officially published, has been carefully examined and we find nothing therein to modify the opinion that we have already expressed. This case, too, stands upon its own peculiar facts and may be easily distinguished from the case of Isman v. Hanscom, as also from the present case. It therefore cannot be considered as a decision overruling or modifying the law as declared in the Isman Case.

The judgment of the court below is therefore affirmed.

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(Circuit Court of Appeals, Seventh Circuit. January 7, 1913.)

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No. 1,899.

1. CORPORATIONS (8 189*)-SALE OF PROPERTY-RIGHTS OF MINORITY STOOR

HOLDERS-RESCISSION-DELAY.

Where minority stockholders delayed for nearly a year in instituting suit to set aside a sale of the corporation's assets to another company, and in the meantime rights of innocent bondholders and other creditors had intervened, such minority stockholders were barred by laches from having the transfer rescinded.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 706–722;

Dec. Dig. § 189.*] 2. CORPORATIONS ($ 182*)-SALE OF ASSETS-MINORITY STOCKHOLDERS-FRAUD.

Where a caporation in desperate financial straits and without power of recuperation sold its property to another company without fraud as against the rights of the minority, the majority having volunteered to make provision for those who were financially unable to meet the requirements to enable them to participate in the transfer and consolidation, the transfer was not invalid as to the minority as inequitable and prejudicial to their property rights.

[Ed. Note. For other cases, see Corporations, Cent. Dig. 88 686-690; Dec, Dig. § 182. *

Rights of minority stockholders as to management of corporate affairs,

see note to Wheeler v. Abilene Nat. Bldg. Co., 89 C. C. A. 482.] 3. CORPORATIONS ( 318*)-TRANSFER OF ASSETS-IDENTITY OF GOVERNING OF

FICERS.

Where the officers of an insolvent corporation without power of recuperation, with the consent of the majority stockholders, transferred all its property to another corporation having the same governing officers, such identity of officers did not invalidate the transfer, provided it was made in good faith.

[Ed. Note.-For other cases, see Corporations, Cent Dig. 88 1363,

1364; Dec. Dig. § 318.*] 4. WITNESSES ($ 29*)-- FEES-FEDERAL COURTS.

Where a witness from without the state voluntarily presented himself and testified without subpæna, he was only entitled to mileage to the extent of the running of the writ of subpæna, to wit, 100 miles.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 67-69; Dec. Dig. & 29.*] Appeal from the District Court of the United States for the Western District of Wisconsin; Arthur L. Sanborn, Judge.

Bill in equity by Fred J. Marks and others against the Merrill Paper Company and others. From a decree (Marks v. Merrill Paper Mfg. Co., 188 Fed. 850) for defendants, plaintiffs appeal. Modified and affirmed.

Appellants, herein termed "complainants," minority stockholders in the Merrill Paper Manufacturing Company, herein termed the “Merrill Company,” fled the present bill on December 6, 1907, against the two corporation defendants, the Merrill Company and the Grandfather Falls Company, and certain individual defendants, majority stockholders of the Merrill Company, and also stockholders of the Grandfather Falls Company, to have the transfer of the property of the Merrill Company to the Grandfather Falls *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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Company of January 15, 1907, declared to be fraudulent and void and set aside, and that said Merrill Company be reinvested with title thereto, that an injunction restraining the Grandfather Falls Company from disposing of said property be granted, and that pending a hearing a receiver be appointed to conserve the property.

From the evidence it appears that the plant was operated by water power; that through some miscalculation this was found to be grossly, inadequate (so much so that the plant could not produce a quarter of the pulp required); that it became necessary to purchase the greater part of the needed pulp; and that continued operation of the plant would incur heavy loss. At that time the court found that its investment amounted to $444,000. Complainants' counsel assert that there was not to exceed $293,000 invested. This seems to accord with the November, 1905, trial balance, from which, however, certain itenis were omitted. To provide adequate water power, the Merrill Company purchased the power site at Grandfather Falls for $62,500, and paid down $2,500 in February, 1906. Attempts were then made to raise means to pay the balance, which was drawing 6 per cent. interest. The stockholders were appealed to in vain, and this scheme was abandoned. Thereafter, certain of the largest stockholders of the Merrill Company organized the corporation defendant, the Grandfather Falls Company. This was on June 1, 1906, and its object, among others, was the developing of that water power. This company then proposed to the Merrill Company to buy its rights and interest in the Grandfather Falls site, and on June 14, 1906, this offer was accepted by the Merrill Company's stockholders on the following terms, viz., the payment of the $2,500 advanced and the assumption of the debts on said Grandfather Falls site. It was further agreed that the Merrill Company should have water power from said power site at $25 per horse power up to 2,000 or more horse power for three years, whenever the dam was completed, which would require at least a year's time. In the meantime, the affairs of the Merrill Company were in a very critical condition. It owed $68,393 of pressing claims, and $33,000 of its bonds were past due. Other bonds aggregating, approximately, $50,000 were up as collateral to loans.

The court found the value of the Merrill Company's property to be $25,000 less than its indebtedness. Its credit was entirely exhausted. In this situation the Grandfather Falls Company made a proposition to purchase all of the Merrill Conipany's property for the amount of its indebtedness. The officers of both companies were the same, and all the stockholders of the Grandfather Company were stockholders in the Merrill Company. The proposition of the Grandfather Falls Company was accepted without opposition at a duly called meeting of the Merrill Company stockholders on December 15, 1906, at which 1,510 out of 2,000 shares of stock were represented. The deed was delivered January 15, 1907, for an expressed consideration of $186,000. The proposition of the stockholders of the Merrill Company with reference to said sale was set out in the following instrument, viz.:

"We, the undersigned, do each for himself, alone, separately and severally subscribe for and agree to purchase and pay for in cash, at par value, the number of shares of the capital stock of the Merrill Paper Manufacturing Company set opposite our respective names here following. On condition, however, that the owners of not less than 95 per cent. of the present out. standing capital stock of said company each in like manner subscribe for additional stock of said company equal in each instance to not less than 75 per cent. of his present holdings. And in case said condition shall not be complied with within 15 days, then we agree to incorporate and organize a corporation under the laws of Wisconsin, to be known as the Grandfather Falls Company, for the purpose of purchasing the lands and water power facilities at Grandfather Falls heretofore owned in common by Messrs. AnSON, S. Heinemann, B. Heinemann, Harmon, O'Day and Daly Estate, and providing boomage facilities, improving navigation, developing water power thereon, and purchasing and holding the stock of the undersigned in Merrill l'aper Manufacturing Company and other stock in manufacturing corpora

203 F.-2

tions likely to need or use said power, and for such other purposes as may be agreed upon. And upon such incorporation being effected this subscription shall as to each subscriber stand as a subscription and agreement to purchase at par value the same amounts, respectively, of the capital stock of said Grandfather Falls Company, and we each severally agree to pay our respective subscriptions on demand of the proper board of directors."

Later, the Grandfather Falls Company issued a stock dividend of 13312 per cent. of the holdings of its stockholders based upon the shares in the Merrill Company held by its company. This, the court held, was a matter of form, and not of substance, to enable the stockholders to make a better showing for loaning purposes and otherwise. Complainants did not participate in the foregoing enumerated proceedings, though advised that such propositions were to be acted on. After the suit bad been instituted, and at the beginning of the taking of the evidence, defendants offered to let complainants and all minority stockholders in on the deal upon the same terms as those accorded to the majority, plus interest accruing since the time when the majority stockholders had paid in their money. In the meantime, the Grandfather Falls Company had issued and sold its bonds to persons having no knowledge of the complainants' demand. As above stated, this suit was not instituted ur about a year after the Merrill Company had sold out..

The complainants attack the bona fides of the sale, charging that the method of doing business by the Merrill Company was not interrupted; that the sole purpose was to deprive the minority stockholders of their rights in case they declined to make further investments in the premises.

The court on the hearing found that the sale was fair, that no advantage was thereby gained by the majority stockholders over the minority stockholders, and that the bill was without equity. Thereupon the court dismissed the bill for want of equity at complainants' costs taxed at $386.35. Included in the items taxed as costs is the allowance of $176.10 in favor of the witness Brazeau, who was brought by defendants from Seattle, and who appeared without subpæna. The mileage was fixed at 5 cents per mile on 3,522 miles, corering the travel of coming and going. From which decree this appeal was prosecuted. For errors, complainants assign the following, viz.:

That the court erred in holding that the majority stockholders and officers of the Merrill Company, being also officers and stockholders of the Grandfather Falls Company, might lawfully transfer the property of the former company in the manner proposed to the latter, to the exclusion of the minority stockholders of the former, if done at a fair sale and without fraud, or undue advantage; that the court erred in holding that the sale in the present case was fair to complainants; and that there was error in the taxation of costs by the court. Further facts are set out in the opinion.

Almon W. Bulkley and C. E. More, both of Chicago, Ill., for appellants.

Edward M. Smart, of Milwaukee, Wis., and R. N. Van Doren, of Merrill, Wis. (B. R. Goggins, of Grand Rapids, Wis., of counsel), for appellees.

Before BAKER, SEAMAN, and KOHLSAAT, Circuit Judges.

KOHLSAAT, Circuit Judge (after stating the facts as above). The findings of fact made by the trial judge are, in substance, supported by the evidence. The record conclusively establishes the fact that, at the date of the sale by the Merrill Company of its entire plant to the Grandfather Falls Company, the former was in desperate financial straits, without power of recuperation. Through what at this time seems to have been deplorable lack of foresight, its substance had been expended in securing a vast factory equipped with every facility for

doing business, except the means for putting it in motion. In so doing, and in its various attempts to remedy this fearful neglect, its ability to provide a remedy was, for all practical purposes, exhausted. Ordinarily, the promoters of such an undertaking, finding themselves hopelessly involved, would have abandoned the enterprise. From the record, it appears that among the stockholders were a number of men who were unwilling to carry the stigma of failure and were therefore disposed to make further sacrifice, and thereby supply the missing means of propulsion and other needed features. Strenuous effort was made to enlist the co-operation of all the Merrill Company's stockholders. The action taken was effected without any apparent opposition,

[1] Delay, such as is shown in the present action of complainants, instituted as it was about one year after the sale, and at a time when the success of the enterprise seemed likely, and when rights of innocent bondholders and other creditors had intervened, has been held to bar the minority stockholder from his remedy through rescission. Johnson v. Railway Co., 227 Mo. 423, 127 S. W. 63; City Bank v. Merchants’ Bank, 105 S. W. (Tex. Civ. App.) 338; Thompson on Corporations (2d Ed.) $$ 4511, 4512; Mechem on Modern Law of Corporations, $ 1582; McCann v. Welch, 106 Wis. 149, 81 N. W. 996; Badger v. Badger, 2 Wall. 87, 17 L. Ed. 836; Sullivan v. Ry. Co., 94 U. S. 806, 811, 24 L. Ed. 324.

"Laches is not like limitations, but is a question of the inequity of permitting a claim to be enforced, and it depends on whether, under all the circumstances, the plaintiff is chargeable with a want of due diligence in failing to institute proceedings before he did." Venner v. Ry. Co., 236 Ill. 349, 86 N. E. 266; Townsend v. Vanderwerker, 160 U. S. 171, 16 Sup. Ct. 258, 40 L. Ed. 383.

[2] If, however, there was fraud in effecting the sale, or if the majority took such means for doing an inequity to the minority stockholders, and thereby gained an advantage over them, other remedies may be decreed. Leavenworth County v. R. I. & P. R. Co., 134 U. S. 688, 10 Sup. Ct. 708, 33 L. Ed. 1064; Jones v. Missouri Edison Electric Co., 144 Fed. 765, 75 C. C. A. 631 (the later case citing many other cases). Indeed, this rule is too well established to need citation of authority. But under the facts of this case no such condition existed. There was no property right of complainants to be destroyed, unless a pro rata interest in a deficit can be called such. It is of no consequence in such a case as was there presented that the plant had cost more than the actual indebtedness—if that were true. The bald proposition was that, with money and credit exhausted, there was no hope of saving it without the advance of further and very considerable funds. Had the minority stockholders joined in the plan to save the investment, there would have been no need of a sale. The majority volunteered to make provision for those who were financially unable to meet the requirements of the new scheme. It would have been unconscionable to compel the majority to advance funds for the benefit of the minority, who were able to pay their proportion and would not. The latter seem to have rested supinely upon what they conceived the

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