52 Ind. 468 | Ind. | 1876
The appellee sued Michael De Camp and Alma De Camp, alleging in his complaint the.following facts, in substance: that, on the 19th day of May, 1871, Thebus M. Bissell, Michael De Camp and Andrew Anderson organized a corporation, known as the “ T. M. Bissell & Co. Manufacturing Company,” under the statute of the State then in force, at South Bend, Indiana; that the capital stock of the company was ten thousand dollars, divided into shares of fifty dollars each; that said Anderson subscribed for and holds two shares, T. M. Bissell subscribed for and holds ninety-nine shares, and said De Camp subscribed for ninety-nine shares; that, on the 28th day of July, 1871, Michael De Camp assigned ninety-eight shares of his stock to his wife, the said Alma E. De Camp, and she still owns the same, the said Michael still holding one share. It is further alleged, that said Michael De Camp, Thebus M. Bissell and Andrew Anderson became and still are directors, said De Camp being president, said Bissell treasurer, and said Anderson secretary ; that said capital stock has all been paid in; that said company did business until the 29th day of April, 1873; that said T. M. Bissell had made large advancements to the company, in money, for Avhich the company was indebted to him; that dissentions and differences had arisen between said Bissell and De Camp, and said Bissell was unwilling to continue to make or keep up such advancements; that, on
■ It is then averred, that, on the said 29th day of April, 1873, said company was indebted to T. M. Bissell, as such treasurer, on account, in the sum of eight thousand eight hundred and thirty-two dollars and eighty cents, and on that day executed its note to him for that amount; and a meeting of all the directors and stockholders of said company was duly called, according to the by-laws of said company, and at said meeting the stockholders, officers and directors of said company resolved that the business of the company should be discontinued, and that the property of the company should be conveyed to the plaintiff, as trustee, to be converted into cash by him, and that the plaintiff should, out of the proceeds of the sale of said property, pay his costs, charges and expenses, and all the debts and liabilities of the company, and divide the surplus, if any, pro rata among the several stockholders, and directed that the secretary of the company should execute to the plaintiff' proper deeds of conveyance and assignments thereof; that, accordingly, on the 1st day of May, 1873, the secretary did assign on the books of the company all of its personal property to the plaintiff, and on the 8th of May, 1873, executed to him a deed of conveyance of the land; that, on the 13th day of May, 1873, said Michael
Prayer, that the defendants be required to surrender said property to the plaintiff; that the defendants be enjoined from setting up any adverse title; that the plaintiff’s title be quieted; that the court settle and determine - the amount ■due to said Bissell; that the court direct as to the management of the said trust; and for other proper relief..
Several exhibits are filed with the complaint.
The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and because of want of capacity in the plaintiff to sue. The demurrer was overruled.
On petition of Thebus M. Bissell and Andrew Anderson, they were made defendants to the action, and filed an answer, in which they admit the facts to be as stated in the complaint.
De Camp and wife answered in four paragraphs. A ■demurrer to the first paragraph was sustained, and there
The defendants De Camp and wife moved the court for judgment on the special findings of the jury; but their motion was overruled. They moved for a new trial, which was refused; and there was final judgment for the plaintiff according to the general verdict of the jury. The evidence is in the record by a bill of exceptions.
Errors are alleged as follows :
1. Overruling the demurrer to the complaint.
2. Sustaining the demurrer to the first paragraph of the answer.
3. Overruling the motion of De Camp and wife for a new trial.
4. Eefusing to give instructions number five, six, seven and eight, asked by the defendants De Camp.
5. Overruling the motion of the defendants De Camp for judgment upon the special findings of the jury.
The first question to be determined is as to the sufficiency of the complaint. The question is argued under this assignment as to the power of a majority of the stockholders, of a manufacturing corporation, under the laws of this State, to wind up its business against the wish of a minority. But we do not think that question is presented by this assignment. We understand the complaint to aver that the resolution to sell the property and wind up the affairs of the corporation was agreed to and adopted by all the stockholders, officers and directors of the company. The demurrer admits the truth of the allegation for the purposes of the demurrer.
The next question relates to the sufficiency of the first, paragraph of the answer, to which a demurrer was sustained. Jt is alleged in that paragraph of the answer, that the defend
We regard the action of the corporation as amounting to an assignment of its property for the benefit of its creditors, etc., and nothing more. That a corporation may make such an assignment is well settled law. Burrill Assignments, 36, 548, et seq. Such an assignment may be made by the board of directors, without the express authority or consent of the stockholders. Dana v. The Bank of the United States, 5 Watts & Serg. 223; Burrill, supra. Cases where the power of the corporation is restricted by its charter or by general law must be excepted from the general rule. In this view of the case, the court committed no error in sustaining the demurrer to the paragraph of the answer in question, as without the assent of De Camp there was a majority of the directors voting for the resolution.
Counsel for the appellants submits that the franchises of the corporation could not pass to the trustee and be sold by him, except by the unanimous consent of all the stockholders. If this be conceded, it does not affect the case, as no claim is made by the plaintiff with reference to the franchises.
Under the third assignment, it is urged that the court erred in refusing to admit evidence of the amount or value
There was evidence offered and rejected on certain other points, but we do not see that there was any error in those rulings. »
The motion for a new trial presented the question as to the sufficiency of the evidence to sustain the verdict of the jury, and counsel submit that question to us. In the view which we have taken of the case, we think there is no reason for disturbing the judgment on this ground.
The good faith of the directors in the passage of the resolution to make the assignment is discussed; but this is one of the questions decided by the jury, and we cannot say that under the evidence it was not correctly decided.
The same may be said as to the necessity or expediency of the assignment. We cannot say that the course pursued was not the most expedient under the.circumstances.
The court instructed the jury at considerable length, giving them, as we think, all the information necessary .to a full understanding of the law of the case. It was urged in the motion for a new trial that the court erred in refusing to give instructions five, six, seven and eight, asked by the defendants. We do not see that the giving of these instructions, conceding them to be correct, would have enabled the jury to comprehend and decide the questions involved, any more accurately than they could without them. Having fully presented the questions involved to the jury, it was not the duty of the court to give other instructions.
The special findings of the jury in answer to interrogatories are not inconsistent with the general verdict. One question about which there was much contention was, whether or not Anderson was, on the 29th day of April, 1873, the real owner in his own right of two shares of the stock of the company. The jury found that he was such owner. It was
The judgment is affirmed, with costs.
Petition for a rehearing overruled.