188 F. 856 | U.S. Circuit Court for the District of Massachusetts | 1911
This case is now before the court on motion for a preliminary injunction. As the defendants’ counsel, and to some extent the complainants’ counsel, have treated the case as if it were before the court on final hearing, it may he well at the outset to refer to some of the elementary principles governing motions of this character.
Upon this general question the master has found as follows:
‘•(23) The proposition to sell the unsold portions of the cemetery property at public or private sale at such prices as the directors shall determine, for the purpose of liquidating the interest of the shareowners under the Cameron agreement and emancipating the corporation from that agreement Is in effect a nulliiication of the Cameron agreement.
“(26) Such action cannot lawfully lie taken without the unanimous consent of the land shareowners under the Cameron agreement, which consent has not been obtained.
••(27) The proposed sale, while nominally for cemetery purposes, is in fact « sale for the purposes of reorganization and its result would be to nullify the provisions of the Cameron agreement without the consent of all the shareowners thereunder and permit of the proceeds of the sale of the use of lots and plats in tile cemetery to be divided contrary to the provisions of the charter.
"(28) The proposed sale of the property is in violation of the provisions of article 12 of the by-laws.
••<•>!>) The proposed repeal of said by-law by action of the directors would be illegal and void.’’
“(:;2) The effect oí the proposed sale would he to give to the nonassenting*858 land shareowners a very small amount instead of the substantial returns which they have a right to expect from their investment under the plan set forth in the Cameron agreement and as set forth in the charter of the cemetery.
“(33) No plan for purchasing the property has apparently been worked out, and a sale may result in the acquisition of the property by a speculative syndicate and in the exclusion of parties who have vested legal and equitable rights in the property.”
These conclusions of the master were reached after a full hearing and a careful consideration of the. case. Without passing upon the question whether the master was right in his conclusions — a question which cannot properly be determined on this motion — it does appear from these findings, and from the able arguments of counsel on both sides, that this case presents substantial and serious questions to be judiciallly determined.
Upon the question of the comparative injury to the parties if this property remains in statu quo until final hearing, it is clear that, while the defendants may suffer some inconvenience, a serious injury may result to the complainants if the readjustment plan is carried out and the remaining cemetery lands sold at public auction before the questions raised by this bill are judicially settled. The very fact that the complainants contest the validity of the proposed sale would naturally seriously affect the price which could be obtained.
Upon the whole, it seems to me that the complainants have made out a case in which a preliminary injunction should be granted.
Motion granted.