129 Neb. 201 | Neb. | 1935
Action in equity for injunction and the appointment óf a receiver for the Rasse Wholesale Grocer Company, a corporation. The action is brought on behalf of the holders of $17,000 of the preferred stock of the company and two creditors in the aggregate sum of about $8,500. The petition alleges that about the 1st day of April, 1929, the grocer company (hereinafter referred to as the corporation) had been successfully operating a wholesale grocery business with a common stock capitalization of $300,000, all of which was owned by Lorenzo J. Rasse, Lorenzo S." Rasse and Luther J. Bonham, except $7,500 which was owned by plaintiff Katherine Kassebaum; that at said time the common stock was worth in excess of $105 a share; that the defendants Bonham, Lorenzo J. and Lorenzo S. Rasse were acting and managing directors of the corporation ■ and completely dominated and controlled
The defendants Bonham and Lorenzo S. Rasse filed answers specifically denying all the allegations of the petition, and defendant Wright answers denying all the allegations of the petition, and specially that he ever entered into any conspiracy or combination as alleged. Defendant Wright also filed a counterclaim setting up a judgment in his favor against the grocer company and praying that an accounting be had, and that, if it be found that there are any assets of the grocer company in the hands of the defendants, his judgment be decreed a first lien thereon. Plaintiffs filed a reply putting in issue the allegations of the answers and cross-petition.
By the decree of the district court, the prayer for the appointment of a receiver was denied and the petition dismissed, and the counterclaim of the defendant Wright dismissed without prejudice to future actions. Motions for new trial were filed and overruled, and plaintiffs appeal.
The bill of exceptions containing the evidence produced before the trial court is very voluminous and the exhibits very numerous, and we do not think that the interests of the parties, the court or the profession require a detailed examination of the record; suffice it to say that we have read and scrutinized the record with great care, and must content ourselves with a statement, as concise as may be, of what it shows and our conclusions thereon.
It appears that up to the 1st of January, 1929, the grocer company had been doing a fairly successful wholesale grocery business of about three million dollars a year, and making a net business profit for the year 1927 of about $25,000, arid for 1928 of about $34,000. Among defend
Upon the withdrawal of the patronage of the Safeway Stores, the directors considered ways and means to dispose of the excess merchandise which the corporation had purchased and contracted for, and concluded-to establish a number of retail stores (which was permitted by their articles of incorporation) as an outlet. The stores were to be established as a selling agency for the grocer company, and the evidence fails to show that the directors expected any individual profit from the enterprise. It was intended to form a Delaware corporation under the name of “Efficiency Stores” for this purpose, the incorporators being Bonham, the Rasses, and the defendant Wright, and articles were prepared to that end, but were never signed.
About April 1, 1929, the establishment of the retail stores .was begun, and within a short period 34 had been started under the name of “Efficiency Stores, Inc.” The process was to acquire locations and enter into leases under that name and, as Efficiency Stores had no separate capital, the grocer company furnished the fixtures and
Early in December, 1929, it was' determined by the directors that the Rasse Wholesale Grocer Company should be liquidated, and to that end all of the assets of the corporation were sold to the Grainger Brothers Company, wholesale grocers at Lincoln, for the sum of about $246,000 in cash and real estate, withholding from said sale, however, all the accounts and bills receivable of the corporation, which were assigned and transferred to Bonham as security to protect him from loss on account of his indorsement of corporation paper. The propriety or legality of this sale is not attacked, although the meetings of stockholders and directors were informal and without written notice having been given. However, the Grainger Brothers Company is not a party and no relief is prayed to have the sale set aside. The retail stores were closed and liquidated and the proceeds applied to the payment of the indebtedness of the grocer company through the assistance and cooperation of Bonham; all of the bills and accounts receivable collected and other assets coming into the hands of Bonham or the grocer company were applied to the payment of the debts of the corporation as far as they would reach; the assets of the corporation have been exhausted, Bonham being short on the indebtedness of the company to him in the sum of $20,000, and the stockholders, common or preferred, received nothing.
The evidence is entirely insufficient to sustain the allegations of conspiracy. The directors in December, 1929, were confronted with a situation in which hundreds, and perhaps thousands, of mercantile institutions found themselves when the whole machinery of production and commerce
Affirmed.