225 F. 1006 | N.D.N.Y. | 1915
The defendants concede that the plaintiff is entitled to recover the sum of $1,167.31, without interest, less the costs and disbursements of the defendants in this action, which they claim they are entitled to recover, on account of an offer of judgment made and served but rejected. The plaintiff claims that he is entitled to recover the sum of $8,329.75, with interest from January 4, 1908.
The Facts.
The defendant the Baker Motor Vehicle Company at all the times mentioned was, and now is, a corporation organized and existing under the laws of the state of Ohio. The defendant American Bonding' Company was and is a corporation of the state of 1V1 aryland. The plaintiff was and is a citizen and resident of the state of New York. The C. B. Rice Company was a corporation organized and existing under the laws of the state of New York, and its certificate of incorporation was duly filed January 2, 1907, with the secretary of state and in New York county, N. Y., January 23, 1907. On the 16th day of August, 1907, the Baker Motor Vehicle Company of New York was duly organized and incorporated, and thereafter existed and still exists, under the laws of the state of New York, with its offices and principal place of business in the city of New York.
At that time the plaintiff, Louis R. Hunter, had a valid claim against said C. B. Rice Company, amounting to $9,204.85, subsequently, and January 4, 1908, adjudicated in an action in the Supreme Court of the state of New York then pending at $8,329.75, including costs. Just prior to the organization and incorporation of the said the Baker Motor Vehicle Company, of New York, the creditors of said C. B. Rice Company, except this plaintiff, who refused to sign and did not assent thereto, signed the following:
“Whereas, the O. B. Rice Company is insolvent, and it appears to the creditors for their best interest that the business should not be wound up, but should be continued, in order that as large a sum as possible may be received from the assets, and they are willing to grant an extension of time for that purpose; and
"Whereas, it is proposed to organize a new corporation, which will take oyer all the assets of the O. B. Rice Company, subject to its liabilities, and subject to a further provision that, in the event of liquidation, all debts contracted after August 3, 1907, by the O. B. Rico Company, or the new company to be organized, with creditors assenting to such extension, shall have preference over the debts existing at that time:
"Therefore, in consideration that a new corporation is organized to succeed to the business of the O. B. Rico Company and assume its obligations by a contract providing that, in the event of the liquidation and dissolution of the said new corporation, all debts contracted on or after August 1, 1907, with creditors assenting to such extension, shall have preference over debts existing at that date, the undersigned hereby agree that it will accept in payment, of its claim against the C. B. Rice Company the note of the new corporation, payable one year after date, with interest at the rate of 6 per cent, per annum. for the amount of said claim, and in the event that the new corporation is managed without a loss for the said period of one year that it will extend the time of payment of said note for the further period of one year, the said notes to be subject to a provision that in the event of liquidation they will be subsequent in payment to all claims arising against the C. B. Rice Company or the new company after August 1, 1907, in favor of creditors assenting to such extension.”
The actual assets of the C. B. Rice Company were then valued at $116.65'7.07, and in point of fact at a fair valuation were worth more than enough to pay all the just debts and obligations of the C. B. Rice Company. The assets of the C. B. Rice Company were actually entered on the minute book of the New York Baker Motor Vehicle Company at the value or worth of $116,657.07, and upon the same book were entered the liabilities as $79,831.98. Thereupon, without the consent of this plaintiff, the C. B. Rice Company, by bill of sale, etc., transferred all of its assets to this new corporation, the Baker Motor Vehicle Company of New York. This transfer was without consideration, other than that the Baker Motor Vehicle Company of New York assumed or agreed to assume and pay all the liabilities of the C. B. Rice Company, in the following language, viz.:
“The Baker Motor Vehicle Company of New York shall and by its acceptance hereof does assume and agree to pay off the liabilities of the O. B. Bice Company as the same appear upon the books (error and omissions excepted) on the 31st day of July, 1907.”
‘•‘Error and omissions excepted” clearly refer to the words “as the same appear upon the books.” This claim of this plaintiff was then being disputed and contested by the C. B. Rice Company.
The evidence establishes that this C. B. Rice Company was in fact organized and controlled by the Baker Motor Vehicle Company of Ohio, this defendant, and used by it as an instrumentality or agency for carrying on its own business under that name and selling its goods in the state of- New York. The Rice Company was dominated by this defendant the Baker Motor Vehicle Company of Ohio, and really controlled by it.
The organization andi incorporation of this new (or New York) Baker Motor Vehicle Company was brought about and caused intentionally by the Baker Motor Vehicle Company, the Ohio corporation, and those representing and acting for it by general authority, for the express purpose of talcing over the assets of the C. B. Rice Company, and well knew what was done. The authorized capital stock of this New York Baker Motor Vehicle Company was $10,000, with only $500 paid in, and with this sum of $500 it commenced business, 'took over the assets of the C. B. Rice Companv, and paid off all the creditors of that company except this plaintiff, and also a few who received money by its notes in the following form, viz.:
“New York, Aug. 16, ’07.
“Aug. 1, 1908, tbe Baker Motor Vehicle Company of New York promises to pay..........dollars with interest at the rate of six per cent, per annum, payable annually, to the order of........... who by acceptance hereof agrees that, if the business of the. Baker Motor Vehicle Company of New York is conducted without loss until August 1, 1908, the time of payment hereof will*1009 bo extended to August 1, 1909, and agrees further that the payment will be subsequent and deferred to all claims against either the C. B. Rice Company or the Baker Motor Vehicle Company of New York arising on or after August 1, 1907. Baker Motor Vehicle Company of New York,
“By . .......... President.’’
These notes of the New York Baker Motor Vehicle Company were accepted by such creditors, except plaintiff, and except a few who received cash, in payment of their claims respectively. This transaction left the C. B. Rice Company without any property or assets of any kind or description, and without any business, and also left this plaintiff without any security, or any one to look to for the payment of Ids claim, except as he could sue, recover judgment, and pursue the assets of the C. B. Rice Company in the hands of this new corporation, the Baker Motor Vehicle Company of New York, or sue that corporation on its assumption of and agreement to assume and pay all the liabilities of the C. B. Rice Company, which he might do if such assumption and agreement included the claim of the plaintiff.
It is not necessary to go through this evidence in detail, it would take too long, but it appears that the Baker Motor Vehicle Company, the Ohio corporation, this defendant, had an agency in New York City for the sale of its products, automobiles and their parts, and having some trouble sent C. B. Rice, who had been in its employ for some time as salesman, to correct matters, which he successfully did. It then continued the business with Rice as manager, but he carried on the business in his own name. It was defendant’s business in fact, and Rice liad a salary and a percentage of the profits. This was continued up to the fall of 1906, when the New York office or business was found to be indebted to the home office or business in the sum of about $80,000 or $85,000. In December, 1906, the Rice Company was incorporated. Defendant company took all the stock issued, $65,000, in payment of the $65,000 due it from the business conducted by Rice, after a credit of $20,000 for goods returned had been given. This new company was organized with its general manager, Mr. White, its treasurer, Mr. Norton, and its secretary, Mr. Goss, on the board of directors, and these men, constituting a majority of sucii board, owned all of the stock. Thus controlling the board of directors, the business was run until January 23, 1907, when an agreement was made to sell Rice $15,000 of the stock for cash and $50,000 for his notes, but retaining tlie power to vote the stock. Thereupon two of the Ohio directors resigned, and Rice put in his wife and brother-in-law in their places; but as a condition defendant Baker Motor Vehicle Company took back the resignations of these two new directors. The defendant 'also gave Rice an agency contract, with the condition that, if the management was not satisfactory to them, they could cancel it at any lime. It is seen that the control was really in the hands of the defendant company. Later a supplementary agreement was exacted by which the defendant company kept control until all the stock should be paid for. The Rice Company did business seven or eight months, when the defendant Baker Motor Vehicle Company asserted that the situation was not satisfactory, and thereupon canceled the agency contract, and thereby destroyed the business of the Rice Company, and
Then follows what has already been described. In October, 1908, bankruptcy proceedings were instituted against this new corporation. The suit of Mr. Hunter, this plaintiff, was on the day calendar for trial when that bankruptcy proceeding was commenced. An injunction ordpr was obtained against Blunter. It was stated by Mr. Kelly, attorney for the defendant company, the Baker Motor Vehicle Company, that the transactions were such-that this new or New York Company, the alleged bankrupt, “is or may be ultimately liable in case a judgment (by Blunter) is obtained against said C. B. Rice Company in said suit,” referring to the suit of Mr. Hunter against that company. Mr. Kelly, the attorney for the defendant company, was active and in control in all these proceedings, and, having had a receiver appointed in the bankruptcy proceedings,- applied for an order authorizing this receiver to sell all the assets of tíre alleged bankrupt company in bulk. This receiver had no title to the property. He could not sell without the consent of each and every creditor of the alleged bankrupt, including Hunter. The property was not perishable. Mr. • Hunter opposed the proposed sale, and the matter ought to have ended then, so far as a sale was concerned, and would have ended then, but for the fact that Mr. Hunter was induced to consent to a sale in bulk on condition he received a bond for the payment of the amount of his claim. The following is the agreement made, viz.:
“It is hereby stipulated and agreed by and between the Baker Motor Vehicle Company (of Ohio) \and Louis R. Hunter, who claims to be a creditor herein, that the order may be granted herein as prayed for by the Baker Motor Vehicle Company (of Ohio) upon the condition that said order provides that a bond in the sum of fifteen thousand ($15,000) dollars, with an approved surety company as surety, be given by the Baker Motor Vehicle Company (of Ohio) to Louis R Hunter, which said bond shall be conditioned that the Baker Motor Vehicle Company (of Ohio) will pay to the said Louis R. Hunter such sum or sums as he may be entitled to in law out of the amount received by the receiver herein for distribution to creditors on said Louis R. Hunter’s claim as set up in a certain suit pending in the Supreme Court of New York, County of Oswego, wherein Louis R. Hunter is plaintiff and Clarence B. Rice and the C. B. Rice 'Company are defendants.
“Dated New York, November 16, 190S.
“The Baker Motor Vehicle Company,
“By George H. Kelly, Its Attorney,
“Louis R. Hunter,
“By William D. Reed, His Attorney.’’
“The condition of this bond is that -.
“Whereas, Louis It. Hunter claims to be a creditor of the Baker Motor Vehicle Company of New York, in the sum of seventy-iive hundred ($7,500) dollars, inierest and costs; and
“Whereas, the Baker Motor Vehicle Company of New York is in bankruptcy in the iriBtrict Court of the United States for the Southern District of New York ;
‘Nov . therefore, witnesseth that, if the Baker Motor Vehicle Company (of Ohio) shall pay. or cause to bo paid, to the said Louis R. Hunter such sum or íuu>:¡; as he, the said Louis R. Hunter, may be entitled in law to receive, out of the ¡mount received by Jamos N. Rosenberg, receiver in bankruptcy of the Bilker ,‘ioror Vehicle Company of New York, for distribution to creditors of saiil Baker Motor Vehicle Company of New York, upon tile said Louis 31. Hunier's claim as it is set up in a certain suit now pending in the Supreme Court of the State of New York, County of Oswego, wherein the said Louis it. Hunter is plaintiff and Clarence B. Rice and the C. B. Rice Company are (ielcndants, then this obligation to be null and void; otherwise, to remain in full force and effect.
“The Baker Motor Vehicle Company,
“[.Senil By Fred R. White, V. Pres.
“R. C. Norton, Secy, and Treas.
“American Bonding Company of Baltimore,
“By Jas. L. D. Kearney, Res. Vice President.”
The defendant Baker Motor Vehicle Company, the Ohio corporation, took the entire property in bulk on this receiver’s sale for far less than its value, a sum sufficient to pay a small percentage only of the debts, not including the plaintiff, who, as a condition of assenting to such sale, exacted the said agreement to pay him—
“such sum or sums as he may he entitled to in law (not bankruptcy proceedings) out of the amount received by the receiver herein (the bankruptcy proceedings) for distribution to creditors on said X.ouis R. Hunter’s claim as set up in a certain suit pending in the Supreme Court of New York, County of Oswego, wherein Louis It. Hunter is plaintiff and Clarence B. Rice and tile C. B. Rice Company are defendants.”
“¡.Signed! Xhe Baker Motor Vehicle Company,
“By George H. Kelly, Its Attorney.
“Louis R. Hunter,
“By William D. Reed, His Attorney.”
The bankruptcy proceedings have not been heard of since, and it is conceded that no adjudication was made or further proceedings taken, unless to confirm such sale. The actual value of the property that went to such receiver was at least $40,000, but it was sold to the defendant company for $18,000. If it was the understanding and intention of the parties to such agreement, or contemplated by them in making and signing the agreement, that Hunter, when his claim was established—that is, liquidated in the suit in the Supreme Court—and presented and proved in the bankruptcy proceedings, was to have his percentage of what the property sold for only, there was no- necessity for the agreement. That was assured in any event. The bankruptcy proceedings were pending; the receiver had been appointed by the court, and he and hence the court itself had the property. It was in
The property of the Rice Company, Mr. Hunter’s debtor, had gone into the possession of the Baker Motor Vehicle Company of New York under the circumstances stated, and without any consideration whatever, except the agreement to assume and pay the debts of, said Rice Company as hereinbefore set forth. In truth this was but a transfer to the real owner of the assets. Such bankruptcy proceedings having been commenced, these assets and others, or their proceeds, were to be transferred to the Baker Motor Vehicle Company, the defendant corporation, by the receiver, which in fact was but a return to it of its own property; and the question is what sum, if anything, the plaintiff, Louis R. Hunter, was entitled to receive or collect, not from such property or assets, his claim against the Rice Company tiren in litigation having been thereafter duly and judicially established by a judgment, but what sum was and is he entitled to recover from these defendants? Do the words “in law” and “out of the amount received by the receiver herein,” etc., cut off and exclude any equitable remedy Hunter had, and limit him to what he could have recovered in an action at law against the Baker Motor Vehicle Company of New York and the assets held in the name of that corporation? Is that the meaning and effect? Or do those words mean what Hunter was legally entitled to recover in any form of action from such corporation, the defendant, on account of its having received, and being the owner under the circumstances stated of, the entire assets of the Rice Company? And the words “amount received,” do they mean the amount of money actually received by such receiver, or the value of the property that came into the receiver’s hands ?
“Waiver implies knowledge, and one cannot be held to have forfeited any rights by reason of acts done in ignorance of the extent of those rights. Thus, if workmanship contracted for has been inadequately performed, one who aeeepls it in ignorance of the deficiency does not waive his right to insist upon the defect. So, too, if he has been put off his guard or misled by the conduct of the other party, a waiver induced by such deception will not be charged against him.’4
In 40 Cyc. 252, 253, 254, and 256, it is said, citing cases;
“The act of waiving, or not insisting on, some right, claim, or privilege; a foregoing or giving up of some advantage, which, but for such waiver, the party would have" enjoyed; an election by one to dispense with something of value, or to forego an advantage he might have taken or insisted upon; the giving up, relinquishing, or surrendering some known right; an intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment or waiver of such right; the intentional abandonment or relinquishment of a known right; the relinquishment or refusal to accept a right; a voluntary relinquishment of some right; the voluntary relinquishment of some existing- right; the voluntary relinquishment of a known right; a voluntary relinquishment of the right that one party has in his relations to another; the voluntary abandonment or relinquishment by a party of some right or advantage; a voluntary surrender and relinquishment of a right; the voluntary relinquishment or renunciation of some right; the voluntary and intentional abandonment, renunciation, or relinquishment of a known legal right; the voluntary relinquishment of some known right, benefit, or advan*1014 tage, and wMcli, except for such waiver, the party otherwise would have enjoyed ; the voluntary yielding up by a party of some existing right; a neglect or omission to insist upon a matter of which a party may take advantage at the time when it ought to be done, so that it may operate as a trap to the other party, to insist upon it afterwards; the passing by of a thing, or a refusal to accept it; the renunciation of some rule which invalidates the contract, but which, having been introduced for the benefit of the contracting party, may be dispensed with at Ms pleasure; an implied consent by a failure to object. * * * Waiver involves both knowledge and intention; an estoppel may arise where there is no intent to mislead. Waiver depends upon what one himself intends to do; estoppel depends rather upon what he caused his adversary to do. Waiver involves the acts and conduct of only one of the parties; estoppel involves the conduct of both.”
It seems to me clear that, if the parties had had in mind only an agreement to pay Hunter his percentage of his claim as established in the pending suit, treating it as a valid claim against the Baker Motor Vehicle Company of New York, and not anything else, they would have so said in plain and unambiguous terms. That is not what was said in the agreement and bond, although the defendants assert
“Now, it is an elementary and fundamental principle of corporation law that a corporation is an entity separate and distinct from its stockholders and from other corporations with which it may be connected. The fact that the stockholders of two separately chartered corporations are identical, that one owns shares in another, and that they have mutual dealings, will not, as a general rule, merge them into one corporation, or prevent the enforcement against the insolvent estate of the one of an otherwise valid claim of the other. * * * Unless, therefore, it can be shown that some exception to the general rule of separate corporate existence and liability applies in this case, it must follow that the claim of the Pulp Company should have been allowed. The only exceptions to that rule possibly applicable here are: (i) The legal fiction of distinct corporate existence will be disregarded, when necessary to circumvent fraud. (2) It may also bo disregarded in a case where a corporation is so organized and controlled, and its affairs are so conducted, as to make it merely an instrumentality or adjunct of another corporation.”
This case is covered by the second exception set forth in the quotation. As between the two corporations the defendant was the owner of all the property. As between the defendant corporation, Baker Motor Vehicle Company, and the said C. B. Rice Company, and then ihe Baker Motor Vehicle Company of New York, the first-named Baker, etc., Company owned all the assets and property, and was liable for all their debts incurred in the prosecution of the business. As between each of the said companies, Baker Motor Vehicle Company of New York, C. B. Rice Company, and this defendant company, and their creditors, such creditors are entitled to be paid from the assets of such first-named corporation in preference to said defendant Baker Motor Vehicle Company of Ohio. The Baker Company of New York was successor merely of the C. B. Rice Company. The legal fiction of
“A partnership engaged in the commission business, and in buying and selling merchandise, acquired for partnership purposes 99 per cent, of the outstanding stock of a manufacturing corporation; the remaining shares being held by relatives of one of the partners. The partners held about equal amounts of the stock, and, as directors and officers, managed the business of the corporation; the partnership taking and selling all of its output. Held,. that the corporation was merely an agency of the partnership, and its property assets of the bankrupt estate, to which the receivership of such estate-would be extended, and the respective rights of partnership and corporate creditors would be determined in the bankx-uptcy proceedings.”
In Gay v. Hudson River Electric Power Company, 187 Fed. 12, 15, 109 C. C. A. 66, the same doctrine was considered, but the ordér in that case was affirmed on other grounds.
There are other grounds on which, in my opinion, this plaintiff is entitled to recover; but it is not necessary to discuss them. I find and hold that the C. B. Rice Company, a corporation, and the Baker Motor Vehicle Company of New York, a corporation, were in fact mere instrumentalities or adjuncts of the Baker Motor Vehicle Company, the Ohio corporation, this defendant, and organized and managed and controlled by it for the purpose of selling its products and property, and that, in performing these functions and duties for the defendant corporation, the. Rice Company incurred this indebtedness, and obligation to this plaintiff, and that of the liability the defendant corporation was well aware; that the organization and incorporation, of the Baker Motor Vehicle Company of New York was procured by the' defendant corporation, and managed and controlled by it, not only to sell its own .products, but for the purpose of taking over the assets in the hands of the Rice Company, and to defeat the claim of this plaintiff; that nevertheless the Baker Motor Vehicle Company of New York, having received all t-he assets and having assumed the indebtedness, including that to the plaintiff, all with the knowledge and at the instigation of defendant, became liable for such indebtedness to. the plaintiff, as was the defendant itself, of course; that the defendant corporation took part in the bankruptcy proceedings and obtained
There will be a judgment accordingly, with 'costs.