93 Kan. 147 | Kan. | 1914
The opinion of the court was delivered by
This is an action brought by persons claiming to be duly elected • directors and officers of a mutual insurance company' organized under the laws of Kansas, against other persons who are acting in that capacity, the purpose being to determine which of the two sets of claimants is legally entitled to the offices in dispute.
At the annual meeting of the members of the company, held January 13, 1914, a controversy arose as a
The persons whom the plaintiffs regard as having been elected president, vice president, secretary and treasurer were therefore chosen by a gathering .of not more than six directors, out of a total of fifteen. Those who are now acting were chosen by a gathering of at least six directors, including the president, attended by the secretary, and moreover were already occupants of the several offices. It results from these views that the action must fail so far as it relates to the offices named.
The conflict between the claims of the two rival sets of five directors, each claiming to have been elected at the annual meeting to succeed those whose terms had expired, is more difficult of solution. The plaintiffs’ faction, which obviously sought to effect a change in the administration of the company, had the greater voting strength, according to a roll that was made up at the members’ meeting. The defendants maintain that in fact this roll was erroneous, and that the voting strength lay with their faction. This need not be determined, but we shall assume that the contention is not sustained. The defendants also suggest that a majority of all the members was necessary to do business at the annual meeting. The number of members being indefi
“There were three directors, Shirk, Tabor and Troudner, that the Harman faction desired to oust of the old directors and five new ones which the Harman faction desired elected, giving such faction 9 of the 15 directors, if successful, and which included Harman, an old director.”
In apparent pursuance of this purpose a motion was made (as a substitute for another motion) that the directors be elected singly. The president, W. B. Gasche, declared the motion out of order and refused to put it. The maker called for an appeal but the president refused to entertain it. Later a motion was made to declare the places of Shirk, Tabor and Troudner vacant, inasmuch as they had moved out of the state and were not performing their duties as directors. The president refused to put this motion, and refused to entertain an appeal from his ruling. An antiadministration member then made a motion, which he stated, and upon a vote declared carried, that the president be expelled from the chair, and that C. B. Harman be elected chairman pro tem. Harman then undertook to act as chairman, and there was some controversy as to the possession of the gavel. An administration member moved an adjournment until the next day. Gasche called for the affirmative vote and declared the motion carried. He says that his recollection is that he also called for the negative vote, but this is denied. Harman says that he himself called for the negative and that a majority voted that way. The Gasche adherents then withdrew, those of Harman remaining and undertaking to elect eight directors, as already stated. The Gasche faction reassembled the next day and undertook to complete the business of the meeting. There is considerable
On the other hand, the validity of the further action of the Gasche adherents on the next day is questionable. It is difficult to determine precisely what took place just prior to the separation. Each side was striving to maintain its position and gain control. The meeting had the power to adjourn to another day. (10 Cyc. 322.) We are not clear that there was a valid exercise of that power — at least in such a way that all the members knew or should have known what had taken place. The division of the meeting, brought about in part by differences of opinion, prevented the ascertaining and carrying out of the will of those entitled to participate in the election of directors. We think that the law justifies regarding the meeting as having been dissolved without effective action, and that the ends of justice will be thereby best promoted. We therefore decide that there was no election of directors at the annual meeting-in 1914; that all the defendants are de facto officers— the president, vice president, secretary and treasurer,