ed into under the following provision of Re- | servant, or the servant left the employer, vised Statutes, c. 40, § 51: "Any person, firm or corporation engaged in any manufacturing or mechanical business, may contract with adult or minor employés to give one week's notice of intention on such employe's part, to quit such employment under penalty of forfeiture of one week's wages." The plaintiff contends that the foregoing provision of statute was impliedly repealed, and the contract made nugatory, by chapter 39, Laws of 1911, which was in force when the wages sued for were earned. That statute provides that every manufacturing corporation, or person or partnership engaged in any manufacturing business "shall pay weekly each employé engaged in his or its business the wages earned by him to within eight days of the date of said payment, but any employé leaving his or her employment shall be paid in full on the following regular pay day." The plaintiff's argument is that the last clause of the statute, requiring payment in full on the next pay day to employés leaving the employment, is inconsistent with the provision for forfeiture in the prior statute, and so repugnant to it as to show a legislative intent to repeal the forfeiture provision, impliedly, though not expressly. We do not think so. "The test of repeal by implication," said the court in Starbird v. Brown, 84 Me. 238, 24 Atl. 824, "is whether a subsequent legislative act is so directly and positively repugnant to the former act that the two cannot consistently stand together. Is the repugnancy so great that the legislative intent to amend or repeal is evident? Can the new law and the old law be each efficacious in its own sphere?" Whether one statute is repugnant to another depends, of course, upon the proper construction to be given to it. And in the construction of statutes, it is the obvious intent, rather than the literal import, which is to govern. Seiders v. Creamer, 22 Me. 558; In re Penobscot Lumbering Ass'n, 93 Me. 391, 45 Atl. 290. The letter may be departed from in order to reach the spirit and intent of the act. Holmes v. Paris, 75 Me. 559. And in some cases, so it is held, the court may construe a statute even in direct contravention of its terms. without notice. It has nothing to do with the time of the payment of wages. On the other hand, the act of 1911 relates solely to the time of payment. It entitles every em ployé to payment weekly, and to payment of all wages earned up to within eight days of the time of payment. But the statute further provides that if the servant leaves, he need not wait for his pay for the last eight days' work until the next pay day, or until eight days have elapsed, but that he is entitled to his pay in full on leaving. That is the significance of the clause in question. It assumes that the employé leaves rightfully. He is entitled at once on leaving to payment in full of the wages that are due him, but not, we think, to wages he has forfeited. If he has not contracted to give notice of leaving, or if he has so contracted and has given notice, he is entitled to all his unpaid wages at once. If he has so contracted, but has failed to give notice of leaving, and has left without cause, nothing is due him. And in such case the act of 1911 does not apply. This construed, the later statute is not repugnant to the former. The further provision in the act of 1911 that "no corporation, contractor, person or partnership shall by a special contract with an employé or by any other means exempt himself or itself from the provisions of this act" relates only to the weekly payment of wages to which the employé is entitled. It follows that this action is not maintainable. Judgment for the defendants. (114 Me. 259) EATON v. MANTER. RATE BOOKS AND RECORDS-DISCRETION OF Under Rev. St. c. 47, § 20, requiring corporations to have a clerk's office where a book showing a true and complete list of all stockholders shall be kept, and providing that the corporate records and stockbooks shall be open at all reasonable hours to the inspection of persons interested, who may take copies and minutes therefrom of such parts as concern their In the light of these rules of construction, interests, where the petitioner purchased a sinwe think that chapter 39 of the Laws of 1911 gle share of stock for the sole purpose of enis not necessarily inconsistent with, and re-abling him to copy the list of stockholders and pugnant to, the forfeiture clause in chapter stock, a writ of mandamus would not be grantsell such list to brokers and others dealing in 40, 51, of the Revised Statutes. It is ob-ed to compel the clerk of the corporation to pervious that the apparent purposes of the two statutes are unlike. They do not touch each other. Though both relate to wages, they relate to entirely distinctive features of the wage question. The earlier statute, which includes also a provision requiring an employer, having a forfeiture contract with his employé, to pay him an extra week's wages, if he discharges him without notice, is evidently intended to prevent the injurious consequences which might result to the one or Exceptions from Supreme Judicial Court, the other, if the employer discharged the i Cumberland County, at Law. mit him to examine the records and stockbook Petition of Horace E. Eaton for a writ of mandamus against James E. Manter. A demurrer to the return or answer was sustained, and the writ ordered to issue, and defendant brings exceptions. Exceptions sustained, and motion for peremptory writ denied. Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, HANSON, and PHILBROOK, JJ. Charles E. Gurney, of Portland, for plaintiff. Verrill, Hale & Booth, of Portland, for defendant. PHILBROOK, J. This is a petition for mandamus brought by a stockholder in a Maine corporation to compel the defendant, who is the clerk of that corporation, to allow the petitioner to examine the record and stockbook of said corporation and to take copies and minutes therefrom of such parts as concern his interests. The defendant filed his return or answer to the alternative writ, and the petitioner demurred thereto. Upon hearing the presiding justice sustained the demurrer and ordered the peremptory writ of mandamus to issue. To this ruling and order the defendant excepted. The petition, alternative writ, return to the alternative writ, demurrer, and bill of exceptions comprise the case. So much of the statute as relates to this case is found in R. S. c. 47, § 20: "All corporations, existing by virtue of the laws of this state, shall have a clerk who is a resident of this state, and shall keep, at some fixed place within the state, a clerk's office where shall be kept their records and a book showing a true and complete list of all stockholders, their residences and the amount of stock held by each. Such records and stockbook shall be open at all reasonable hours to the inspection of persons interested, who may take copies and minutes therefrom of such parts as concern their interests." * The following is found in the last paragraph of the bill of exceptions which was allowed by the presiding justice: "The presiding justice considered that in view of the previous decisions of this court he had no discretion to refuse a peremptory writ, and therefore on June 17, 1915, made a ruling that the peremptory writ of mandamus issue as prayed for." of enforcing it. In White v. Manter, 109 Me. 408, 84 Atl. 890, 42 L. R. A. (N. S.) 332, and Withington v. Bradley, 111 Me. 384, 89 Atl. 201, relied on by the petitioner, our court distinctly notes this difference. Conceding a right to inspect these books and records, given by common law and by the statute hereinabove referred to, the courts are not agreed that it is compulsory upon the court in all cases to enforce the right by mandamus, which is a discretionary writ, and not a writ of right. Some courts seem to hold that, when the right to inspect is guaranteed by statute, mandamus must issue as a matter of course, and that nothing is left to the discretion of the court. It is elsewhere held that the statutory right, while absolute in terms, is subject to the implied limitation that it shall not be exercised from idle curiosity, or for a merely vexatious or an unlawful purpose. White v. Manter, supra, and cases there cited. In Withington v. Bradley, supra, our court has said: "We do not wish to be understood as holding that it is compulsory upon the court in all cases to enforce the stockholders' right by granting the writ of mandamus. * From its inception mandamus has been a discretionary writ, not a writ of right, and the remedy, extraordinary in its nature, has been somewhat sparingly employed. The character of this writ and the discretion to be exercised by the court in issuing it seem not to have been taken away nor abridged by the statute under consideration. A state of facts might be presented where the purpose of the petitioner was so obviously vexatious, improper, or unlawful, that the court might feel compelled to exercise its discretion in the interests of law and justice and decline to issue the writ." As to the second contention, we learn from the answer of the defendant, admitted by the demurrer to be true as to allegations of fact, that the number of stockholders in the corporation exceeds 963, that the number of shares outstanding is 72,858, that the petitioner owns only a single share, of the value of less than $50, that said single share was acquired by him solely for the purpose of enabling him to examine the records and stockbook of said corporation and take copies therefrom of the list of stockholders, in order The defendant contends for two proposi- that he might sell the same to brokers and tions: First. That the court has the right to exercise its discretion and to refuse the writ, if it considers that the proposed use by the petitioner of his status as a stockholder is an improper one. Second. That it is an improper use by a stockholder of his status as a stockholder to obtain a list of his coinvestors in a particular enterprise and sell this list broadcast to brokers or others. In discussing the first contention we must clearly differentiate between the existence of a right and the authorization of the method others dealing in the stock of corporations, and to enable him otherwise to give information of the names and holdings of said corporation to persons not stockholders of or in any manner interested in said corporation. We are of the opinion that these conditions bring this case clearly within the rule laid down in Withington v. Bradley, supra, and that we should decline to issue the peremptory writ. It follows that both contentions of the defendant should be sustained and that the mandate should be: Exceptions sustained. Motion for peremptory writ to issue denied. (114 Me. 220) SKENE v. GRAHAM et al. (Supreme Judicial Court of Maine. 1915.) 1. MUNICIPAL CORPORATIONS STREETS-DRIVERS MEETING-DUTY. 705 was closed to traffic from a point 100 feet from its junction with Sewall street, but the Dec. 14, northerly side of the street was open and in use by the public on the day in question, and there was sufficient room for automobiles and other vehicles to pass and repass; the width of that side of the street being 24 feet. The plaintiff left his garage with the intention of going to Manchester, and had passed up Western avenue some 275 feet when he decided to return to the garage. His counsel questioned him as follows: It is the duty of travelers on a highway, approaching so as to meet, seasonably to turn to the right of the middle of the traveled part of the road so far that they can pass each other without interference. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. 705.] 2. MUNICIPAL CORPORATIONS 705-AUTOMOBILE COLLISION-LAW OF THE ROAD. Where defendant, in order to avoid striking plaintiff's car, which was on the wrong side of the road, ran his automobile on to the left side of the road as an emergency measure, plaintiff was not entitled to recover for the collision which occurred, since under such circumstances defendant was not liable for violating the law of the road. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. 705.] 3. MUNICIPAL CORPORATIONS 705-AUTOMOBILE COLLISION-LAW OF THE ROADEMERGENCY. When two alternatives are presented to a traveler upon the highway as modes of escape from collision with an approaching traveler, either of which might fairly be chosen by an intelligent and prudent person, the law will not hold him guilty of negligence in taking either. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. 705.] On Motion and Exceptions from Supreme Judicial Court, Kennebec County, at Law. Action by John R. Graham and others against James W. Skene. Judgment for plaintiff, and defendants move for new trial and except to certain rulings on instructions. New trial granted. Argued before SAVAGE, C. J., and SPEAR, KING, BIRD, HALEY, and HANSON, JJ. Williamson, Burleigh & McLean, of Augusta, for plaintiff. Ryder & Simpson, of Bangor, for defendants. HANSON, J. This is an action on the case to recover damages for personal injuries sustained by the plaintiff in a collision between the plaintiff's and defendants' automobiles. The jury returned a verdict for the plaintiff for $2,175. The case is before the court on the defendants' general motion for a new trial, and exceptions to the refusal of the presiding justice to direct a verdict for the defendants, and refusal to give certain requested instructions. "Q. Describe your course back. "A. I went right straight down the north side of the street until I got down to where I could go across the track. There was lumber and horses piled up there, so you could not get past, and so I went down and crossed the track and then proceeded on the right-hand side, extreme right-hand side of the street, down to Sewall street. "Q. And where was the Packard car when you first noticed it? "A. It was on Western avenue, on the righthand side of the street, which would be the northerly side, coming up the avenue. "Q. That would be its proper side? "A. Yes; its proper side. "Q. Will you describe the collision; first, will you tell us where the collision took place? "A. Right on the corner of Western avenue and Sewall street, on left or south side of Sewall street, at the junction of Sewall street and Western avenue. "Q. On which corner of Sewall street was it, east or west? "A. Very nearly the middle of the street. "Q. Will you describe the accident fully? "A. Well, I was going along on my righthand side of the street, and this big Packard car came tearing up Western avenue, and when it came nearly opposite to me, all at once it swung right around, and crossed the track and struck my car." The plaintiff claims that the defendants' car was driven out of its course, and from its lawful position on the northerly side of Western avenue, across said avenue and into collision with his car, which was, and had been for some distance, proceeding on the (his) extreme right-hand side of said avenue; that he was in the exercise of due care, traveling 10 or 12 miles an hour, while the defendant was driving 40 miles an hour. condition, if true, would constitute culpable negligence on the part of the defendants. This But the defendants, in support of their motion for a new trial, contend that the evidence did not authorize the jury to find for the plaintiff, that the collision was the result of the plaintiff's own carelessness, and that any damage resulting therefrom was due to his fault and want of due care. Harry A. Haas, who was driving the defendants' car, testified: "Q. You started from Bangor? "A. Yes, sir. "Q. When you got to Augusta, what course did you take? "A. Well, I came up State street and up Western avenue; and at Western avenue and Sewall street the accident happened. The collision occurred at the corner of Western avenue and Sewall street in Augusta, on August 26, 1913. The plaintiff was driving a Ford car easterly on Western avenue, while the defendants were traveling westerly in a Packard car on the same street. The plaintiff was driving his own car, the what happened after you left State street, on "Q. Won't you state in your own words just defendants' car being in charge of a chauf-your way up Western avenue, up to the time feur. The southerly side of Western avenue of the collision? The defendants' contention is that the plaintiff did not seasonably turn to the right, and that the chauffeur driving the defendants' car whether to continue his course and collide was obliged to decide quickly with the plaintiff's car, or turn to the left and avoid a collision. "A. Well, I was going up Western avenue Rendall, 98 Me. 69, 56 Atl. 209, 63 L. R. close to the gutter, on my right-hand side, on A. 668. the north side of Western avenue, and I was going about 15 miles an hour; and I saw Mr. Skene's Ford automobile stop close to the curb on the other side at a house, and when I got about halfway up, he started, running close to the curb in my direction. I proceeded along Western avenue, and when we got close to Sewall street, he had not turned out; and if we had kept that same course, we would have run into each other head on. And so when we got to Sewall street, I swung out, and he swung out at the same time, and I turned around and stopped the machine, and he came there and caught me. "Q. At the time of the collision, the Packard car was stopped? "A. Stopped; yes, sir. "Q. And how fast should you say the Ford machine was going when he struck you? "A. Eight or 10 miles an hour. "Q. But the turning, what about the turning? “A. Both turned practically the same time. I was turning to get out of his way, to pass him, and he turned at the same time. I could not turn back, because I would run into him head on; and I ran over and stopped, and he ran into me." The defendants corroborate Mr. Haas in all important particulars, and he is corroborated by the plaintiff's witness Brown, the only witness introduced by the plaintiff who saw the collision, upon the most vital point in the case. Mr. Brown testified as follows: "Q. Will you describe what took place, the course of that Ford car before the accident? "A. Well, before the accident, I was coming up Sewall street, going to Western avenue, and Mr. Skene, he was up Western avenue, coming clear up from somewhere, and he went up into a yard, and I was coming along and looking that way, and I saw him. "Q. You were going to the north? "A. Yes, sir; and he came down Western avenue, clear up, and he went by where they were working in the street there, and he swung over and turned across the track there where they run the electric cars, and I saw a big automobile come and go right straight across, and it went right into him, and I hadn't seen that other car; and why, because Gov. Burleigh's house hid me from looking down, I had not got far enough up. I was right by the corner of Gov. Burleigh's house, and I was by the Soule house, and that car was behind there coming up, and there at the corner was Gov. Burleigh's house, and that hid the car coming from the other way, from down street, the car coming was not in view there. "Q. Could you see the course of the Ford car all the time? "A. Yes, sir; but I did not see this big car until it came out and turned right across. "Q. Turned right across what street? "A. Western avenue-came right across. And Mr. Skene was coming from the other side of the street, crossways. "Q. On what side of the street was Mr. Skene at the time you saw the accident? "A. On the south side of the street, coming down Western avenue." The collision occurred on the south side of Western avenue. [1] It is the duty of travelers, approaching to meet, seasonably to turn to the right of the middle of the traveled part of the road, so far that they can pass each other with [2, 3] The case shows that the defendants were proceeding along Western avenue on the right side of the traveled way; that they had no occasion or desire to cross over to, or use the opposite side of the avenue; and it clearly appears that if the plaintiff had not been approaching from the opposite direction, they would not have done so; and it is equally certain that if the statement of the plaintiff is true, they would have had no occasion to cross over to the other side. From the plaintiff's own showing, he had no reason to believe that the defendants intended to leave their course. Between the point where he could have turned to his right and the point of contact there was 100 feet of clear way, a space admittedly sufficient for such turning in time to avoid collision, so that from the very nature of the case, if the plaintiff's statement is true, the collision would not have occurred, and certainly could not have happened in the manner described. It is not explained in the evidence, nor does it appear clear from the briefs of counsel, how under all the circumstances claimed by the plaintiff, the left side of his car could be struck by the right side of defendants' car. It is manifest that the collision was due to the fact that both cars swerved from their course at the same instant, the car of the defendants swerving from its lawful position to one of supposed safety in order to avoid an accident, the other leaving its unlawful position and course for the same reaThat the swerving of defendants' car was imperative is apparent; that an emergency existed, not only justifying, but authorizing, the defendants' chauffeur in so swerving, is equally apparent. That his act was not due to his unlawful use of the road is shown by an overwhelming weight of the evidence, and that the defendants are not liable for any damage arising in the circumstances is a principle firmly established. When two alternatives are presented to a traveler upon the highway as modes of escape from collision with an approaching traveler, either of which might fairly be chosen by an intelligent and prudent person, the law will not hold him guilty of negligence in taking either. Larrabee v. Sewall, 66 Me. 376, and cases cited. son. It is the opinion of the court that the verdict is so manifestly against the weight of the evidence that it should not be permitted to stand. It is unnecessary to consider the exceptions. Motion sustained. (78 N. H. 33) "Equity regards the property of a corporation JACQUES V. MANCHESTER COAL & ICE as held in trust for the payment of the debts of CO. et al. the corporation, and recognizes the right of creditors to pursue it into whosesoever posses (Supreme Court of New Hampshire. Hillsbor- sion it may be transferred, unless it has passed ough. Nov. 2, 1915.) 1. TRUSTS 354-PROCEEDS CORPORATE into the hands of a bona fide purchaser." Railroad Co. v. Howard, 7 Wall, 409, 19 L. Ed. 117. "It is well settled, both on principle and precPROPERTY-CREDITOR'S RIGHT. Where a corporation transferred its prop- to the extent of the property of the corporation edent, that stockholders are liable to creditors erty to its sole stockholder, another corporation, received by them on distribution, where no proa transaction that was a distribution of the vision has been made for the payment of debts. judgment debtor corporation's capital stock, a The liability rests on the theory that it is a judgment creditor could follow the proceeds of fraud upon the corporate creditors to distribthe sale of the property by such stockholder in-ute the corporate property to the stockholders to the hands of the agent of the stockholder, without providing for the payment of the debts though no attachment had been made, since of the corporation. The willful destruction or equity regards the property of a corporation as held in trust to pay the company's legal lia- the intentional diminution of any part of the bilities in tort or contract, and recognizes the profits thereof, is held to be a fraud upon the corporation's capital, or the diversion of the right of creditors to pursue it until it passes creditors, and entitles them, as against the perinto the hands of a bona fide purchaser. petrators, to maintain an action for proper relief." 4 Thomp. Corp. (2d Ed.) § 4926; Crandall v. Lincoln, 52 Conn. 73, 52 Am. Rep. 560; Hurd v. Company, 167 N. Y. 89, 60 N. È. 327; Farnsworth v. Robbins, 36 Minn. 369, 31 N. W. 349. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 527, 528; Dec. Dig. 354.] 2. ATTACHMENT 180-EFFICACY OF LIENBONA FIDE PURCHASER. Where property is attached and thereafter sold by the defendant's transferee to a bona fide purchaser for value, the attachment lien is superior to the rights of such purchaser. [Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 453, 550-575; Dec. Dig. 180.1 Exceptions from Superior Court, Hillsborough County; Branch, Judge. Bill by George Jacques against the Manchester Coal & Ice Company and others. Decree for plaintiff, and defendants except. Exception overruled. The term "debts" is used in this connec tion in the sense of legal liabilities. The trust is imposed in favor of the holders of all corporate obligations, and may be taken advantage of by those whose claims sound in tort rather than contract. Grenell v. Gas Co., 112 Mich. 70, 70 N. W. 413. [2] The defendants' contention that be cause no attachment was made no lien was obtained upon the property does not affect the result. If there had been such a lien, it would have been superior to the rights of bona fide purchasers for value; and without the lien, the right of such a purchaser would prevail. But the stockholder to whom distribution was made does not stand as a purchaser, but as a trustee, accountable to those having lawful claims against the corporation. The decree does not impose a lien upon the specific property, which may have passed to a bona fide purchaser. It merely charges one who wrongfully received the property for what was so received. Bill in equity, alleging that the defendant company, being liable to the plaintiff for injuries negligently inflicted upon him, conveyed all its property to its sole stockholder, the New England Investment Company, in return for the surrender of the certificates of stock, while his suit was pending; that the Investment Company sold the property, and its agent, the defendant Loveren, now holds $50,000 of the proceeds of such sale; and that the plaintiff, having recovered judgment for about $4,000, is unable to find any property from which to satisfy the execution. The fact that the stockholder has dispose The prayer is that the defendant Loveren of the specific property transferred to it does be ordered to pay the amount of the judg- not alter the legal situation. When it took ment from the fund in his hands. At the the property it became chargeable for the trial at the January term, 1915, of the supe- value thereof, and its liability is not decreasrior court before Branch, J., it was founded by the fact that it has sold the property that the transfer of the property to the Investment Company was a distribution of the assets of the Coal & Ice Company to its stockholder, and a decree was made as prayed for, subject to the defendants' exception. and now holds the proceeds of the sale. It is not necessary to determine whether the transfer violated the law in other respects. Exception overruled. All concurred. Taggart, Burroughs, Wyman & McLane, of Manchester, for plaintiff. O'Connor & (78 N. H. 30) O'Connor and George A. Wagner, all of Man- BERRY v. SCHOOL BOARD OF BARRINGchester, for defendants. PEASLEE, J. [1] Upon the finding that the transfer of the property of the Coal Company to its sole stockholder, the Investment Company, was a distribution of the capital stock of the former, the plaintiff in this proceeding was entitled to relief. TON. (Supreme Court of New Hampshire. Strafford. Nov. 2, 1915.) |