87 N.J. Eq. 1 | New York Court of Chancery | 1916
The defendant company was adjudged to have been eondncting its business at great loss and greatly prejudicial to the interests of its creditors and stockholders, and also to be insolvent, and General Sadler was appointed receiver for it by this court. The company has not yet been wound up and the receiver is still in the discharge of his duties. A petition has been presented by
The statute under which the present petition has been preferred is section 69 of the Corporation act (Revision of 1896, P. L. p. 300), which reads:
“Whenever a receiver Shall have been appointed as aforesaid and .it shall afterwards appear that the debts of the corporation have been paid or provided for, and that there remains or can be obtained by further contributions sufficient capital to enable it to resume its business, the court of chancery may, in its discretion, a proper case being shown, direct the receiver to reconvey to the corporation all its property, franchises, rights and effects, and thereafter the corporation may resume control of and enjoy the same as fully as if the receiver had never been appointed; and in every case in which the court of chancery shall not direct such reconveyance, said court may, in its discretion, make a decree dissolving the corporation and declaring its charter forfeited and void.”
I have been pointed to but one case in which this section of the Corporation act has been construed, and that is Fleming v. Fleming Hotel Co., 70 N. J. Eq. 509. There a receiver refused to adjourn an advertised public sale of the assets of a hopelessly insolvent corporation at the request of ninety-seven per cent, of the creditors and all of the stockholders. They set up that an agreement had been made by a large number of the creditors for an.extension of time for the payment of the company’s debts. At the time of sale it did not appear that there was any capital, present or obtainable bjr further contributions, to enable the re
It should be observed that on the hearing of this matter it appeared that the $250,000 was not sufficient to pay the debts of the International Power Company, which had increased by reason of expenses of receiverships, &e., and the aggregate sum which the Dominion Mining and Manufacturing Corporation was willing to lend ■ was increased to a sum not to exceed $300,000.
The statute, as already seen, provided that when the debts of the corporation not having been actually paid, but their payment being provided for—that is, provision for payment having been made, and there remains or can be obtained by further contributions, sufficient capital to enable it to resume its business, this court may, in its discretion, a proper case being shown, direct a reconveyance of the property.
This statute, it seems to me, looks to action by the corporation itself in an endeavor to repossess itself of its property and resume its business. There has been no corporate meeting here and no action taken by the company to this end. The endeavor appears to be one by a coterie of capitalists to obtain control of ' the American and British Manufacturing Company, a majority of whose stock is owned by the International Power Company, which is a holding corporation, so called.
In my opinion, corporate action is required by an insolvent company that would resume its business under the scheme provided by section 69 of the Corporation act. It is not an answer to say that the corporation is in the hands of a receiver and its officers are enjoined from exercising any of its ■ privileges or franchises. In such circumstances the court, upon proper application, would permit the board of directors to take appropriate action looking to the discharge of the receiver and the restoration of the company’s property and franchises. See Lehigh Coal and Navigation Co. v. Central Railroad Co., 5 N. J.
Nor is it any. answer to say that the parties preferring the • present petition own a majority of the stock of the defunct corporation, and that, therefore, they would control the directors to tlje end which they desire; for in a meeting of a board of director's there may be a dissenting member whose arguments might convince the majority of the unwisdom of their proposed' action. Holcombe v. Trenton White City Co., 80 N. J. Eq. 122; affirmed, 82 N. J. Eq. 364. It is to be observed in this connection, that while a majority of the stockholders desire the discharge of the receiver and the restoration of the company’s property, a minority of the stockholders protest and declare that it is unwise under all the circumstances to permit, such action to be taken. Now, at a meeting of the board of directors, one or more members of that body might protest and convince the majority that the company should be wound up-. What'the result in such a meeting of the directors of the International • Power Company would be I cannot know, but certainly such an application as the one before me should only be made through proper corporate channels after an opportunity has been afforded to thoroughly canvass the matter by tire directors-, at least, and, probably, by the stockholders also. In othpr words, it seems to me it would be unwise for the board of directors of an insolvent coiqporation in the hands 'of a receiver to petition for a restoration to the corporation of its assets, looking to a resumption of its business, without canvassing the stockholders as to their de-' sire in the premises; for the.court, in the end, has to pass upon the whole matter, and it must at least be shown that the corporation itself is desirous of resuming business, not merely that a majority of the stockholders axe. In other words, it should appear that the company itself, after formal and' deliberate corporate action, is desirous of resuming its business; not that resumption should be thrust upon it. However, this question was not raised in the argument before me, and I will, therefore, proceed to dispose of this matter on its merits.
I have no hesitation whatever in concluding that a proper case has not been shown under tire statute, and that the application should be denied.
This is not all. There is another cogent reason for its denial. Since February 19th, 1913, a corporation having for its object the holding of stocks and bonds of other corporations could not be formed under the laws of this state. P. L. 1918 p. 82. Public policy forbids the organization of any such corporation. The legislature makes the public policy of the state. Earle v. American Sugar Refining Co., 74 N. J. Eq. 751 (at p. 762). If the question whether or not this application should be granted were a doubtful one on the facts, it would properly be refused on tire ground that to doubt is to deny, but, in addition, considering the ascertained and declared public policy of the state,
Another thing: The act in question provides that in these cases where the court shall not direct a reconveyance of its prop-. erty ho a corporation in the hands of a receiver, it may make a decree dissolving the company and declaring its charter forfeited and' void. The respondents in this matter applied for this on the hearing. I see no reason why it should not be done.
Before leaving the subject I think I ought to observe that the affidavits submitted on the pending motion contain some characterizations, hearsay and conclusions, and are somewhat argumentative, when they should'have stated only matters of fact, leaving all inferences to be made by way of argument. The same rules, as far as may be, apply to ex parle testimony as to that in litigated matters. See Palmer v. Palmer, N. J. Eq. 88; Topfer v. Topfer, 68 Atl. Rep. 1071.
An order may be entered denying the motion and dissolving the corporation defendant. The respondents are entitled to costs.