15 Del. Ch. 40 | New York Court of Chancery | 1925
The suit in this case though brought in the name of individual complainants is nevertheless a suit in behalf of the Plymouth Oil Company. The complainants sue in behalf of themselves as stockholders and all other stockholders who may choose to come in and become parties complainant. The corporation is made a party defendant. The fortieth paragraph of the bill excuses a demand upon the directors that they bring suit to correct the wrongs complained of on the ground that they are associated with said wrongs, participated in them and therefore cannot be expected to sue. The bill is, therefore, to be regarded as having been filed by the corporation defendant, whose rights are derivatively asserted by some of its stockholders, and the grievances, if any, are accordingly to be regarded as belonging to the corporation.
Briefly stated, the right to the relief asked for rests on the proposition that promoters of a corporation owe to it a fiduciary duty; that this duty antedates the formation of the corporation; that it is owed not alone to the corporation as its membership is composed at the time the transactions complained of were consummated, but as well as its membership is composed in the future if future stockholders are expected by the promoters to be invited to join it; that this duty, in that aspect of it which concerns us here, is to refrain from taking a profit at the expense of the corporation while it is in their control, unless the same is fully disclosed to all those who are members or who later become members upon the invitation of the promoters; and that if this duty is breached by either positive misrepresentation, or even negative concealment, the corporation may sue to recover from the wrongdoers the profits which they took.
The term “promoter” may be found variously defined. In Old Dominion Copper Co. v. Bigelow, 203 Mass. 159, 89 N. E. 192, 40 L. R. A. (N. S.) 314, it is defined as follows:
“In a comprehensive sense ‘promoter’ includes those who undertake to form a corporation and to procure for it the rights, instrumentalities and capital by which it is to carry out the purposes set forth in its charter, and to establish it as fully able to do its business. Their work may begin long before the organization of the corporation, in seeking the opening for a venture and projecting a plan for its development, and may continue after the incorpora*50 tian by. attracting the investment of capital in its securities and providing it with the commercial breath of life.”
Let this definition of the word be accepted. The affidavits show that the status of Stearns in the affairs of this corporation was that of a promoter. Stearns, however, was not acting for himself alone. He was the outward representative of a group whose members are among the parties defendant. Whenever Stearns is mentioned, therefore, it is to be understood that his associates in the promotion are likewise meant to be named.
That Stearns was a promoter is taken as a present fact in the case. Another fact which must be accepted as true is, that when he made the sale to the Plymouth Oil Company of the $3,000,000 of Big Lake Oil Company’s stock (together with certain other oil and gas properties) in consideration of all its capital stock, the Plymouth Oil Company was under his control and direction. All the then members of the corporation, and persons interested with him, were fully advised and informed, however, of the details concerning Stearns’ acquisition of his rights and what he eventually received therefor. No complaint is made that he over-reached in any way his associates in the enterprise. The affidavits show also that, when the sale was made by Stearns and the stock issued to him as consideration therefor, it was the intention of Stearns to offer preferred stock for sale to persons outside his group. I shall assume that Stearns intended, not only at the time of the sale to the corporation, but also when he acquired his rights from Pickrell, to invite persons outside the circle of his associates to join the enterprise as stockholders of some kind. In the sequel, the outsiders turned out to be friends of the promoters who were taken in because the prospects -for great gain were desired to be shared with these friends. The plan of the promoters does not appear to have had any of the earmarks of that type of stock-jobbing promotion which contemplates the throwing out of a drag net to catch as many victims from a gullible public as might be possible. If the view of the complainants is correct, however, the plan was in one sense even more vicious, in that it proposed to find its so-called dupes among friends of long standing. These friends became purchasers of preferred stock which had been issued as part consideration for property rights and turned back to a
When they purchased their preferred stock, the complainants say they were deceived by certain false statements concerning the capitalization of the company. This the defendants deny. I shall not now make a finding on this disputed question of fact. It does not appear to me to be necessary, because I understand the solicitors for the complainants to emphasize their view of this fact, not because it furnishes a ground upon which a case for relief may be predicated, but solely as evidentiary of the fact of secrecy which they contend vitiates the alleged profits which Stearns is charged with having taken. The main point in this connection is whether Stearns took a forbidden profit which was secret. It is not necessary, if the complainants are correct in their legal contentions, that the profit should be hidden by active misrepresentation; it is sufficient if it be hidden by mere failure to disclose it. And inasmuch as I shall assume that the profit, if any, which went to Stearns was not fully disclosed to all the purchasers of preferred stock, the element of secrecy within the meaning of the complainants’ contention is made out without reference to the question of whether there was a positive misstatement concerning the company’s capitalization. There remains, of course, the principal question to be discussed of whether Stearns did as a fact receive anything which may, under the principles of law applicable to this subject, be properly designated as a forbidden profit, even though it was not disclosed. More upon this question will be said later. All I am concerned with at this point is to explain why no further mention will be made touching the disputed fact with respect to the representations alleged to have been made concerning the company’s capital structure.
The defendants contend that even if the proposition of law upon which the complainants, as above stated, ba^e their right to relief be conceded, yet it cannot avail them here because of the fact that the stock which they purchased was “treasury stock” which had once been lawfully issued. The point they urge is that whatever right the corporation may have to recover forbidden profits from promoters by reason of the subsequent inclusion of inno
“It is now established by an almost unbroken line of decisions, that if the promoters themselves take the entire share capital of the corporation and then sell the shares to outside parties, there is no fraud upon the corporation, and no basis of complaint by it, no matter what profits the promoters may derive from the transaction. There is, it is said, no fraud upon the corporation, nor upon any one, in the original transaction for there is in effect a mere change of form, the promoters receiving the share certificates in the place of the property transferred to the corporation, and the value of the property transferred to the company is the exact measure of the value of the shares received in payment therefor. The par value of the shares issued in payment may greatly exceed the value of the property transferred to the corporation, but the amount which the property transferred falls short of the par value of the shares will be exactly represented by the difference between the par and the actual value of the stock.
“If there is any fraud in a subsequent sale of the shares the cause of action arising therefrom is personal to the purchasers. The matter is one between these purchasers and their vendor, and no cause of action results to the corporation therefrom.”
“It would be correct [the contention that no actionable wrong had occurred] as to subsequent stockholders who might purchase from the promoters or from Irvine and Lihou [their associates] stock already issued, but it is not correct as to those who might without notice purchase directly from the treasury, because it ignores the fiduciary relation between promoters and such fu turc purchasers.”
On this assumption, which later on is accepted as sound, the complainants’ authorities will be found on examination to be irrelevant to the discussion. The authorities are Yale Gas Stove Co. v. Wilcox, 64 Conn. 101, 29 A. 303, 25 L. R. A. 90, 42 Am. St. Rep. 159; American Forging, etc., Co. v. Wiley, 206 Mich. 664, 173 N. W. 515; Pittsburg Mining Co. v. Spooner, 74 Wis. 307, 42 N. W. 259, 17 Am. St. Rep. 149; Anderson v. Johnson, 45 R. I. 17, 119 A. 642; Macey Co. v. Macey, 143 Mich. 138, 106 N. W. 722, 5 L. R. A. (N. S.) 1036; California-Calaveras Mining Co. v. Walls, 170 Cal. 285, 149 P. 595; Beal v. Smith, 46 Cal. App. 271, 189 P. 341. These cases aré distinguishable from the instant one, if not upon the point of full value for the stock, then upon other grounds. The Yale Gas Stove Case discloses an issuance of stock at an overvaluation (a circumstance of moment as hereinafter pointed out); and furthermore the subscribers to stock became such before the company was formed (another important distinguishing feature which ought not to be lost sight of when cases dealing with a promoter’s transaction with his company are studied for their principles). American Forging, etc., Co. v. Wiley, in Michigan, was a case where the action was to secure relief against a breach of contract made by a promoter with his associates on behalf of the company, an action entirely different from what we are here dealing with. In Pittsburg Mining Co. v. Spooner, there was a clear case of over-valuation and the promoters did not own the option which the corporation exercised and in doing so directed its stock to be issued as a consideration. The court refused (an important point to note, when the facts of the instant case are considered) to say what would have been the result if the promoters had owned the mining option and'had formed the corporation and issued full
In all of the cases referred to the circumstance that so-called “treasury stock” was acquired by the complaining stockholders appears to have been present. In only a few of them is this circumstance noted and commented on by the court. When it is commented on it is said in substance that the receipt of the stock by the promoters and the subsequent transfer back to the corporation is mere jugglery and will not be allowed to give to the stock a complexion other than that of stock originally issued to the purchasing public. But in such cases, it is to be noted, the stock was issued at an over-valuation. Where such is the case, there may be room to contend that the stock was never lawfully issued by the corporation, and therefore its temporary presence in the hands of the promoters is to be completely ignored. Especially is this so where statutory provisions require that stock shall be issued only for full .value in money, property or services. This court in Ellis v. Penn Beef Co., 9 Del. Ch. 213, 80 A. 666, has denounced an issuance of stock of a Delaware corporation without consideration as a “fraud towards the State, which in effect has prohibited such transactions.” Cases elsewhere may be found to the same effect.
moters without value received and turned back by them as treasury stock to the corporation, by which it is afterwards sold, is unincumbered by any estoppel arising out of its having been formerly held by the promoters so that the present holder is free to assert complaints which his predecessor in title could not assert, I am of opinion that if promoters give full value for the stock they ■ receive, they may turn it back to the treasury to be sold for the benefit of the corporation, and purchasers thereof have no better right than the original promoter to complain in the name of the corporation against any supposed wrongs that may have attended its issuance./' All that the corporation can demand for its stock having a par is the value thereof. If it gets that, how can it be injured? If the stock was lawfully issued, giving it back to the treasury to be turned into money is no different in reason from what would take place if the first recipient had himself sold it and donated to the treasury the cash proceeds. In either case the result so far as the corporation is concerned is the same. In both cases it winds up with money in place of its stock, and in both cases its stock stands out against full value paid. The stock of this corporation having been issued for full value, I do not regard the cases referred to by the complainants as authorities in favor of the proposition that the stock which they bought is to be regarded as original stock which has simply been juggled with by Stearns in the vain hope of giving it a different status. If this be so, then under the Bigelow Case, which is so firmly relied upon by the complainants, the complainants have the status of Stearns and are as effectively foreclosed from complaint in the corporate name as he would be. What would be the situation if Stearns had not given full value for his stock, the facts as presented by the affidavits do not call upon me to answer.
I now turn to the important question of fact, viz., was the property which Stearns sold to the corporation fairly worth $5,250,-000, the par value of the stock which he received for it? The Constitution of this State in the third section of its Ninth Article provides that:
“Section 3. No corporation shall issue stock, except for money paid, labor done or personal property, or real estate or leases thereof actually acquired by such corporation.”
“Sec. 14. Issuance of Stock for Labor or Real or Personal Property. — Subscriptions to, or purchase of, the capital stock of any corporation organized or to be organized under any law of this State may be paid for, wholly or partly, by cash, by labor done, by personal property or by real property or leases thereof; and the stock so issued shall be declared and taken to be full paid stock andnot liable to any further call, nor shall the holder thereof be liable for any further payments under the provisions of this chapter. And in the absence of actual fraud in the transaction, the judgment of the directors, as to the value of such labor, property, real estate or leases, shall be conclusive.”
Actual fraud in the valuation of the assets to be acquired is thus necessary to be made out in order for the judgment of the directors to be overthrown. Under the facts of this case, I have not the slightést hesitance in finding that the judgment of the directors who valued the property at the figure of $5,250,000 was not only free of actual fraud, but was conspicuously fair. The resolution of valuation was adopted after a very careful and thorough investigation by skilled and competent men extending over a period of several weeks. They valued Stearns’ rights at from $16,-000,000 to $25,000,000. Of course the thing was which being valued was oil lands. These are notoriously uncertain in their possibilities. But it would be unreasonable to say that the particular properties in question were of the “wildcat” variety. A proven well had been drilled and it flowed over a period of several months with a persistency which was especially marked in view of the adverse conditions surrounding it. Extensive studies of the geological formations in its vicinity were made, and the result of those studies was such that men, such as were these men in the Stearns group, whose life work equipped them to appraise with greater intelligence than most men the oil values of a given field, were convinced that a great discovery had been made. The sequel has justified their judgment. It appears now that the properties owned by Stearns and acquired by the defendant corporation are worth in the neighborhood of $40,000,000. No one disputes this. The contention that traders in oil lands would not have given $5,250,000 for the Steams rights at the time of their acquisition by the Plymouth Oil Company does not present itself with appealing force. What is of
But, it is said, Stearns had no property rights; he had at best only a bare option to purchase, which option he induced the corporation he organized to exercise and pay the money called for thereby out of funds supplied by the purchasers of preferred stock, who were ignorant of the large amount of common stock which he and his associates had taken for themselves. This being the situation, say the complainants, it is a case where promoters induced others to put up all the money for a venture in which, if there was failure, the outsiders would be the only losers, and if there was success the promoters would reap the lion’s share of the. profits. In part, at least, this is plausible. But I see nothing fraudulent in it. In the first place, Stearns did not have a mere option. He had certain definite, fixed and firm contract rights. His agreement bound Pickrell to convey and Stearns to pay. While Stearns was bound to consent to a transfer of the lease and permits to a corporation (Big Lake Oil Company) and was not forbidden to sell the three-fourths of this corporation’s stock to another corporation if he saw fit (which he did, the defendant corporation being the other one), yet he himself always remained under the personal obligation to Pickrell to pay the cash of $200,000 and advance the money for completing two wells and drilling four other wells which was estimated to cost $250,000. Some of his associates guaranteed the faithful performance of his obligations and thus assumed with him their burden, without which Pickrell would have rejected the contract. Stearns was bound by his contract regardless of whether or not he ever formed the defendant corporation, or any other one, for a like purpose. He was under no obligation to fdtm any corporation to purchase his tnree-fourths of the Big Lake stock. He and .his associates might have brought their organization plan to a terminus at that stage of it where the Big Lake was to take over the property. If they had, Stearns would still be bound to supply the necessary funds from some source to
“This characteristic, namely, that neither Roe nor the defendant [the promoter] was the owner of these lands at the date of this transaction, distinguishes this case from a line of authorities which hold that a party, being already the actual or potential owner of property, either having the legal title*60 vested in him or by holding it under contract with part of the consideration paid and mutual obligations to pay the balance of the consideration and to convey the propérty, may innocently promote and organize a company to buy it at an advance.”
In reply to this contention of the complainants that Stearns had but an option, it is not necessary to decide whether in all cases without exception if the promoter be a mere optionee he can make no profit. It is sufficient merely to observe that whatever the correct rule might be with respect to such cases, we are not concerned with it here, because Stearns was not an optionee; he was the owner of rights which were rigidly and firmly fixed by a contract of purchase and sale. It is to be observed also that what Stearns sold to the defendant was not his rights under the Pickrell contract. He sold shares of stock of the Big Lake Oil Company — $3,000,-000 worth in par value. To be sure, the Plymouth Oil Company agreed to meet Stearns’ obligation to make the cash payments amounting to at least $450,000. Of this sum $200,000 was already taken care of by a $50,000 cash payment and $150,000 'in notes made by Stearns and associates. The cash payment immediately, 1 suppose, and the payment of the notes eventually came from moneys received from the sale of the 150,000 shares of preferred stock. The complainants, therefore, and others similarly situated, supplied it. It is because of this situation that the complainants say that they furnished the money and took the risk, while the defendants took only the prospect of gain. This is not entirely correct, however, for the affidavits show that the Stearns group advanced altogether at one time or another, either in the form of cash or endorsement, something over $600,000. It cannot be said therefore, that the complainants and others similarly situated took all the risk and the promoters none. But considerations of this nature having to do only with the relative risks assumed are not such as to be of moment in determining the merits of the controversy here involved. If the true situation was that the so-called promoters had a highly valuable asset honestly believed, and subsequently demonstrated, to be capable of yielding great gains, I know of no principle of equity which would require the owners of these assets to allow others to share in equal ratio all of the profits if they were admitted to share any.
For the reasons above given it therefore appears that the complainants and all interveners with them as holders of preferred stock are in the situation of those who hold stock which was lawfully issued to the promoters and are as effectively precluded from
Before proceeding to such final discussion, it may be well to pause here for the purpose of pointing out the distinguishing features which serve to render inapplicable .to the facts here presented many of the authorities cited by the complainants. A great number of such authorities is cited, and all of them have been examined. To refer to them all in a detailed discussion of each would, prolong this opinion to an inordinate length. Those cases are cited to support the complainants’ principal proposition, viz., that promoters are liable to account for secret profits to the corporation where as an original scheme the public is intended to be drawn into the corporation and to provide funds for its continuance, and that the only way in which the promoters can be relieved from this liability is for them to provide an independent board of directors to whom full disclosure is made, or to make a full disclosure of all material facts to each subscriber for original shares, or to procure a ratification of the transaction after disclosing all its attending circumstances by vote of the stockholders of the completely organized corporation, or, finally, to themselves become the real subscribers to all the stock contemplated as a part of the original promotion scheme. This is the proposition for which the case of Old Dominion Copper Co. v. Bigelow, 188 Mass. 315, 74 N. E. 653, 108 Am. St. Rep. 479; 203 Mass. 159, 89 N. E. 193, 40 L. R. A. (N. S.) 314, stands. On the same state of facts the Supreme Court of the United States has taken the diametrically opposite position. Old Dominion Copper Co. v. Lewisohn, 210 U. S. 206, 28 S. Ct. 634, 52 L. Ed. 1025.
The instant case is so clearly distinguishable from the Old Dominion Coprer Cases in certain very material features that its
Continuing with the purpose expressed a moment ago to point out wherein this case is distinguishable from those cited by the complainants in support of their principal proposition, it is
In the foregoing review of authorities cited by the complainants, no mention has been made of several English cases to which reference has been made on their briefs. These cases as I have read them do not appear to me to be adverse to the conclusion which is reached in this one. None of them presents a situation such as I shall in a moment briefly describe as the situation here, and they all, I think, fall within one or more of the distinguishing categories of the cases which I have above attempted to enumerate. But aside from this, I confess myself somewhat hesitant, as Chief Justice Knowlton apparently was in his dissent in the Bigelow Case in Massachusetts, 203 Mass. 159, at page 231, 89 N. E. 193, 220 (40 L. R. A. [N. S.] 314), to accept in full the expressions of English judges in cases of this character in this State, where we have no such provision in our law as is found in Section 38 of the English Companies Act relating to the duty of issuing a prospectus when shares are contemplated to be sold. That section is as follows:
"Every prospectus of a company, and every notice inviting persons to subscribe for .shares in any joint-stock company, shall specify the dates and*68 the names of the parties to any contract entered into by the company, or the promoters, directors, or trustees thereof, before the issue of such prospectus or notice, Whether subject to adoption by the directors of the company, or otherwise; and any prospectus or notice not specifying the same shall be deemed fraudulent on the part of the promoters, directors, and officers of the company knowingly issuing the same, as regards any person taking shares in the company on the faith of such prospectus, unless he shall have had notice of such contract.” Section 38 of the Companies Act, 1867 (see 1 Cook on Corporations, [8th Ed.] § 143, p. 503).
As showing the importance in the English law of this provision upon a very crucial point in cases of this character, the language of the Master of the Rolls in Lagunas Nitrate Co. v. Lagunas Syndicate, (1899) 2 Ch. 392, is of significance. He says at page 428 of the report:
“The Nitrate Company, although in one sense formed when registered, was not completely formed, as contemplated by the promoters, until a prospectus had been issued and a large capital had been subscribed.”
Where a prospectus is intended to be issued, it thus appears that under the English law there is a statutory duty of full disclosure upon points materially involved in the instant case. And furthermore, if no prospectus is intended to be issued, that is to say in all other cases, there is a statutory duty of a similar kind provided by the English law to be performed by the filing of certain information of a similar detailed nature with the registrar. See the summary of the English statute taken from Halsbery’s Laws of England, vol. 5, pp. 141, 142, and given by Cook in a note on page 285 of the first volume of the eighth edition of his “Treatise on the Law of Corporations."
In the light of these peculiar statutory provisions applicable to corporations formed under the English Companies Act, cases decided by the English courts touching questions of the nature we are here concerned with are of doubtful value as authorities.
In some of the American cases above referred to, the Old Dominion Copper Co. Cases with their conflicting decisions in Massachusetts and the United States Supreme Court are referred to and the doctrine of the Bigelow Case, which the complainants appeal to here, is stated to be preferred as against the contrary doctrine announced upon the same state of facts by the Supreme Court of the United States. On the other hand, other cases are
Having paused to point out the distinguishing features inherent in the cases cited by the complainants, I now proceed to a discussion of that feature of the case which was deferred awhile ago for final attention.
This feature has to do with what seems plainly to be the inequity of the relief asked. Here is a case where, as already shown, the defendant promotors gave more than full value for the stock they received. It is impossible to see how the corporation has suffered any injury. It does not seek a rescission of the sale made by Stearns. It does not ask that the defendants shall turn back the 700,000 shares of stock still held by them and account at par for that which they have sold, tendering back to them the Big Lake stock which they through Stearns transferred to it. Nor do the individual complainants and interveners desire to surrender their stock in exchange for the money they paid for it. The corporation as well as the complaining stockholders wish to keep everything the defendants gave and take from them everything that they received. If the defendants had given nothing for the
The complainants answer this apparently just argument against them by saying that the fact that the property turned out to be worth as much as the corporation paid for it to the promoters is of no materiality. In support of this answer they cite the following cases: Western States Life Ins. Co. v. Lockwood, 166 Cal. 185,
The proposition is repeatedly announced by the authorities that a promoter owes a fiduciary duty to the corporation which he procures to be organized, the obligations of which continue to rest upon him so long as the corporation is in his control. But what is the nature of that duty with respect to a transaction of sale between him and it ? Certainly an owner of property who wishes to form a corporation to take over the property is not restrained by the obligations of that duty from making the sale. The owner of property may “innocently,” says Pitney, V. C., in Woodbury Heights Land Co. v. Loudenslager, supra, organize a- company to buy it at an advance. No case has been found holding to the contrary. The only material particular in which it seems to me the obligations of his duty can restrain him is that he shall not receive an unfair price. This fairness of price, if the managing body is impartial and disinterested, will presumably be secured by the corporation. Where such is the situation no controversy .arises.
These cases recognize that while justice is being done to the corporation the promoters may have equities in their favor which the court in administering its relief cannot in fairness disregard. It is interesting to observe how this same solicitude for the equities of the promoter-owners is manifested by the court in Old Dominion Copper Co. v. Bigelow, 203 Mass. 159, 89 N. E. 193, 40 L. R. A. (N. S.) 314. That case supplies the chief support to the complainants here. Upon the point now under consideration, I regard it as a strong authority for the defendants. In that case, and in this one, men acquired an interest in property with the clear intent at the time in the Bigelow Case, and, I will for the moment assume, with a like intent in this case, to sell it to a' corporation to be formed. In each case the sale was made at an advance over what the promoter-owners paid for it, and in each case, though all existing stockholders approved of the transaction, it was contemplated that further innocent stockholders would be brought in. This is as far as the analogy need be carried for the present purpose. Now what was the result in the Bigelow Case ? Let it be stated first that Bigelow and Lewisohn had bought the property for $1,000,000. They turned it over to the corporation for $3,250,000. Their profit was, therefore, $2,250,000. Having held that Bigelow and Lewisohn had obtained an unlawful profit by the transaction, what did the court hold as to its recoverable amount? It did not decide that the profit which they were under a duty to return was the difference between what they had paid and what they received, or $2,250,000. It held that they should return the difference between what they had received and what the property was worth (it being shares of stock having a market value). It was found to be worth $2,000,000, and the decree was for the return accordingly of only $1,250,000. This case, therefore, recognizes the principle
The same principle is deducible from the case of Roberson, et al., v. Draney, et al., 53 Utah, 263, 178 P. 35, a case which is strikingly analogous in its facts to the one here presented. There it was held that if the corporation acquires land entries from its promoters while in their control at a profit to themselves, giving stock in exchange therefor in an amount not in excess of the value of the entries, the corporation cannot be said to be injured nor is it material that the promoters reaped greater profits than other purchasers of shares.
Aside, therefore, from what might be the correct view upon the variety of questions discussed and referred to in commenting upon the cases noted in the earlier part of this opinion, it seems to me in view of what has been finally discussed to be highly inequitable to hold that the shares of stock now standing in the names of the defendants do not belong to them. Here is a case where individuals in the exercise of keen vision and shrewd judgment acquired certain tremendously valuable assets. "At that time they were, as I have before observed, under no fiduciary duty to anybody. They turned these assets over to a corporation at much less than they were worth. They admitted others to a share in their good fortune. The corporation has an asset of value now appearing to be worth about $40,000,000 as against its capital stock of only $5,250,000 par value, and the complainants now have shares of stock costing $1.50 a share (taking into account the bonus of common stock which accompanied each share of preferred stock purchased by them at $3) which is valued by market transactions as high as $40 a share. The proposition of this bill is that those who have thus benefited the corporation and all the outside shareholders, shall be told by a court of equity that they must now step aside and relinquish to the exclusive enjoyment of others all the
Inasmuch as upon the present showing the complainants could not secure a cancellation of the shares held by the defendants, a preliminary injunction as prayed should not issue. The rule will therefore be discharged and the restraining order heretofore issued vacated.
Let an order be prepared accordingly.