252 F. 324 | E.D.N.Y | 1917
(after stating the facts as above).
“shall be consented to by the holders of not less than two-thirds of the capital stock of the corporation, which consent shall be given eithter in uniting or by a vote at a special meeting of the stockholders called for that purpose; * * * and a certificate under the seal of the corporation that such con*329 sent was given by the stockholders in writing, or that it was given by vote at a meeting as aiorecud, shall bs subscribed and acknowledged by the president or vice president and by the secretary or an assistant secret ary, of the corporation, and shall be filed and recorded in the office of the clerk or register of the county wherein the corporation has its principal i>lace of business.”
It is a fact that this mortgage was consented to by the unanimous vote of all the stockholders at a special meeting called for that purpose, and apparently each stockholder also consented in writing. At the trial the defendant produced a certificate of such consent, dated August 10, 1915, signed by Henry Doscher as president, and by Charles Doscher as secretary, with the corporate seal affixed, and attested by the secretary. The testimony for the defendant is to the effect that this paper was executed on the (lay it bears date, and .was given to ati employe, who was a notary, to take the acknowledgments. The testimony is rather vague, and the notary had no recollection of such an incident. However, the paper in evidence is not acknowledged, and it is conceded that no consent was ever filed and recorded as required by statute.
In the next place, it is conceded that the mortgage was never formally authorized by the board of directors of the corporation. Section 34 of the General Corporation Law of this slate prescribes that “tlie affairs of every corporation shall be managed by its board of directors,” acting through a majority present al a meeting duly assembled. In this case, as already shown in the statement, the stockholders as such, comprising all the directors and officers, consented to the mortgage in a meeting duly assembled. A directors’ meeting immediately followed, at which the old directors and officers, save Henry Doscher, in turn resigned, and new directors and officers were elected or appointed by the remainder of the board to fill the vacancies as they occurred. It was by these new officers that the mortgage, dated the same day, was executed. But the minutes of the meeting contain no reference to the mortgage.
Both these omissions undoubtedly constitute grave formal defects, but I do not think that they are necessarily fatal. In both instances the substance is proved. So far as the absence of a resolution of the directors as such is concerned, every director had, as a stockholder, and as part of a substantially continuous transaction, deliberated and acted upon the proposal. People’s Bank v. St. Anthony’s Church, 109 N. Y. 512, 17 N. E. 408, relates to a special statute designed to safeguard the peculiar interests of a religious corporation. Of course, I rely upon the continuity of the prearranged transaction, and the supposition that the resignation of the retiring directors was not effectual to relieve them of their responsibility for the culminating act performed by their successors pursuant to a plan theretofore agreed upon. Otherwise, there is a total absence of any authorization by the directors, for it is not claimed that the new directors assented to the mortgage, directly or indirectly. Likewise the consent of the stockholders is proved to have been given. As the Court of Appeals said in Rochester Savings Bank v. Averell, 96 N. Y. 467:
*330 “The consent of stockholders is the important and essential thing. The filing is formal and subsidiary.”
This idea runs through all the cases, and in no case to which reference has been made has a mortgage been declared void where the stockholders had in fact consented. In Black v. Ellis, 129 App. Div. 140, 113 N. Y. Supp. 558, affirmed in 197 N. Y. 402, 90 N. E. 958, on other grounds, a majority of the court held, that, in view of the finding of the court below that consent had been given, the mere failure to file proof of the fact did not render the mortgage void. A minority dissent was based upon the ground that the finding of the lower court really showed that the stockholders consented only in the sense that they did not object. In the case of In re Post & Davis Co., 219 Fed. 171, 135 C. C. A. 69, where the Circuit Court of Appeals for this circuit held that a chattel mortgage executed by a cor-» poration without the required consent properly evidenced was invalid and could not be ratified, Judge Lacombe stated:
“There is no pretense that any written asslent was ever signed, or that it was ever voted at any stockholders’ meeting, special or general.”
“Mortgages creating a lien upon real and personal property, executed by a corporation as security for the payment of bonds issued by such corporation * * * and recorded as a mortgage of real property, * * * need not be filed' or refiled as chattel mortgages.”
Consideration of the further objections to the validity of the mortgage, which go to the substance rather than to formal requisites, is dependent upon findings of fact with respect to the situation on August 10, 1915, when the mortgage was made.
In the first place, the corporation was then plainly insolvent. Its books show that on July 31, 1915, its assets were $935,720, its liabili
The financial condition of the company was well known to the Doschers. They knew that it had lost money every year from 1903, save that a small profit had been made in 1905 and 1906. At the stockholders’ meeting on January 21, 1915, where a financial report for the year 1914 was submitted, showing a loss of $30,013, a resolution was unanimously adopted appointing a committee “to take the necessary and appropriate steps to wind up the business of the company.” The minutes of successive meetings of the board of directors on March 16th and May 3d. of the same year refer to the efforts being made to wind up the business; and the preamble to the resolution of the stockholders on August 10th, consenting to the mortgage in issue, after stating that the “company is indebted to the estate of Claus Doscher in a sum exceeding four hundred and fifty thousand dollars for money loaned and upon open account,” continues:
“And whereas, the financial condition of the Franklin Brewing Company renders it impossible for it to pay said indebtedness in whole or in part, and unless a reorganization of the company is .effected, and an adjustment of this indebtedness is arranged, the company will have to discontinue business and dispose of to,properly at great sacrifice and loss, both to the Franklin Brewing Company and the said estala of Claus Doscher.”
Of course, it is entirely immaterial that the Doschers were financially able to pay any or all of the company’s indebtedness if they saw fit. They were under no legal obligation to continue their advances, and it was inevitable that they would at some time cease to carry this burden, as the event proved.
The next material inquiry relates to the manner in which the aggregate amount of this mortgage was made up and the 'basis upon which it rests. The evidence shows that one of the Doschers instructed the company’s bookkeeper to make out a statement of the aggregate of the following items: (a) Doans made by the Doscher estate to the company ($178,850), with interest due thereon ($15,310); (b) the so-called bond and mortgage account, being the $200,000 advanced by Claus Doscher in 1906 to pay off the mortgage then out
The defendant contends, however, that the so-called bond and mortgage account of $200,000 stands upon a different basis. It appears that on December 29, 1906, Claus Doscher delivered his check for $200,000 to the company, and that on the same day the company paid to the Nassau Trust Company, the mortgagee named in the Malcolm Brewing Company mortgage of 1891, a like sum, with instructions to use the same in payment and cancellation of the bonds issued under that mortgage. This was done by January 9, 1906, when the mortgagee delivered to Doscher the mortgage and a satisfaction piece. This satisfaction piece was never filed. Claus Doscher’s loan of $200,000 on December 29, 1905, was originally entered in the company’s books under the heading “Claus Doscher Loan Account.” But on January 31, 1906, this item was transferred to a new account then opened, called “Bond and Mortgage Payable Account,” and so remained until bankruptcy. By whose direction or,authority this change was made does not appear. By a provision of the agreement by the executors of Claus Doscher with Neuberger the former agreed to “discharge and cancel of record a certain mortgage of two hundred thousand ($200,000) dollars, now a lien on, and of record against, the Franklin Brewing Company.” This agreement was not performed, and the mortgage was finally satisfied of record, upon the application of the complainants as trustees, without the production of the original mortgage, by an order of the Supreme Court dated October 8, 1917.
So far, then, as the items which made up the $450,000 mortgage are concerned, it is plain that the $17,000 book entry and the unfulfilled promise to cancel the $12,000 mortgage on the Myrtle avenue property represented no value whatever, and the so-called bond and mortgage account of $200,000 represents nothing higher in the scale of obliga* lion than the loan account, properly so called, of $178,850. In othei words, so far as the mortgage in issue was based upon any considera* tion whatever, it represented merely unsecured antecedent indebted* ness. It is so described in the very first recital of the resolution adopted by the stockholders at their meeting on August 10, 1915, which reads:
“Whereas, the Franklin Brewing Company is indebted to the estate of Clans Doseher in a sum exceeding four hundred and fifty thousand dollars for money loaned and upon op/em account,” etc.
But the defendant claims further that, even so, there was other valuable consideration given; and reference is made to (a) the further loan of $56,000 to secure liquor tax certificate, to (b) the renewal of the $27,000 loan by the North Side Bank, and to (c) the fact that the bonds issued under the mortgage carried only 4 per cent, interest. The matter of the $56,000 loan for liquor tax certificate is provided for in the agreement of the Doseher estate with Neuberger. It reads:
“The parties of the first part, as executors, are to loan, or cause to he loaned, the money necessary to obtain the liquor tax certificates of the present customers of the company for the certificates due on the 1st day of October, 3 ÍH5; such money so advanced to b¡e secured by assignment or otherwise, so as 1o invest the parties of the first part, or the lender of such liquor tax money with the complete ownership of suelx tax certificates, and the money paid by the said customiers in payment for such certificates, is to be set aside or paid over to the lenders as the same is paid to the said Franklin Brewing Company by such customers. The said Franklin Brewing Company to execute any and all instruments required by the tenders to further secure them for the money so loaned.”
Of this provision it is to be observed, in the first place, that it is a separate agreement, entirely apart from the mortgage in issue, made with a person who had no connection with the company; and the license money provided for forms no part of the mortgage, but is an independent transaction. Moreover, the executors promise merely “to loan, or cause to be loaned, the money necessary to obtain the liquor tax certificates of the present customers,” arid “such money so advanced to be secured by assignment or otherwise” — the company to “execute any and all instruments required by the lenders to further secure them for the money so loaned.” The Doseher estate did after-wards loan this sum of $56,000, under an agreement made with the company on September 20, 1915; but the separate and independent character of the transaction is shown by the fact that $35,000 of this $56,000 loan was repaid, and the lenders have proved their claim in bankruptcy for the balance.
“No corporation wliicli shall have refused to pay any of its notes or other obligations, when due, in lawful money of the United States, nor any of its officers or directors, shall transfer any of its property to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any other consideration than the full value of the property paid in cash.”
A mortgage is a transfer within the meaning of this section. Munson v. Genesee Iron & Brass Works, 37 App. Div. 203, 56 N. Y. Supp. 139; Caesar v. Bernard, 156 App. Div. 724, 736, 737, 141 N. Y. Supp. 659, 668, 669. There was no cash consideration for the mortgage, but merely a transfer by way of security for an antecedent debt. The transfer to the prohibited persons was indirect, in that the bonds were issued first to the executors of the Doscher estate; but they were immediately transferred by the executors to the individual beneficiaries under Claus Doscher’s. will. The statutory provision applies, therefore, if the company had refused to pay any of its notes or other obligations when due. There is no proof of refusal to pay any notes. There is abundant proof of refusal to pay merchandise creditors, who had supplied goods on open accounts. In three instances the proof shows a written offer and acceptance, but in two of these the amount actually due does not appear on the face of the writing, and can be ascertained only by an inspection of the books. In the case of the Shipley Construction & Supply Company, however, a written offer to supply a specified piece of machinery for a stated price was definitely
Prior to the enactment of this section of the Stock Corporation Raw a similar provision in the Revised Statutes (1 R. S. 603, 604) referred to “notes or other evidences of debt,” and it must be assumed that no change in meaning was intended by the substitution of the word “obligations.” The word “obligation” originally meant a bond containing a penalty with a condition for the payment of money or to do or suffer some, act or thing, The meaning of the word has been gradually enlarged by the courts beyond its original meaning of a bond obligatory, and has come to mean a paper by which some fixed duty is assumed to be performed at a certain time, or an instrument in writing whereby one party contracts with another for the payment of money at a fixed date or for the delivery of specific articles. However various have been the definitions given the'word, the essential element has always been that it must be a written engagement by which a fixed duty is assumed. In other words, it must be complete on its face, and not dependent upon an examination of books of account or bills presented. Munzinger v. United Press, 52 App. Div. 338, 65 N. Y. Supp. 194. It is clear, therefore, that open accounts are nót obligations; nor are made such by a written proposal and acceptance which does not disclose the amount due. But the contract of the Shipley Construction Supply Company is an obligation in the proper sense of the term, and the company’s refusal to pay it supplies the remaining' condition for the operation of the statute.
“Sio conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by an officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation, shall be valid.”
In view of the conclusions which I have already reached, the only material inquiry under this provision is whether this mortgage was made with the intent of giving a preference. What, then, is the meaning of intent to prefer as used in the statute ? This language has been construed by the Circuit Court of Appeals for this circuit in Cardozo v. Brooklyn Trust Co., 228 Fed. 333, 142 C. C. A. 625, where the court adopted this statement of the court below:
“It seems to me that the trac meaning is that, to constitute a preference, the corporation or its officer making the payment must have known or expected that it would have that effect. Irish v. Citizens’ Trust Co. (D. C.) 163 Fed. 880. The statute is meant to apply when the corporation is confronted with the problem: How are the assets of the corporation to be used, not in carrying on its business, but in meeting its obligations? Olney v. Baird, 7 App. Div. 95, 110, 40 N. Y. Supp. 202. In other words, the Question is whether the payment was made in contemplation of insolvency and winding up as an*336 impending fact, or in' contemplation of continuing business in good faitli r and this question must be determined, of course, as an inference from the surrounding facts.”
See, also, In re Salvator Brewing Co. (D. C.) 183 Fed. 910.
If this be the criterion, I am of opinion that the intent in this case to prefer is established by the evidence. The Doschers had carried this unprofitable business for several years, a!nd found themselves more deeply involved each year. They finally decided, as the corporate records expressly state, to wind up the business. Efforts to sell to other brewers were unsuccessful. Evidently, as a last resort, negotiations were opened with Neuberger, who was a lawyer with some experience in handling brewing properties. There is nothing in the evidence to indicate that the Doschers had any reason to expect that Neuberger would be likely to succeed where they had failed. My inference is that they were not concerned with the outcome. They had determined to shift the burden, and their sole concern was their investment. Since they had been unable to realize upon their investment by means of a sale, they evidently concluded that the best available alternative was to secure a first lien upon the property by way of mortgage, and thereby secure themselves against eventualities which their experience led them, with good reason, to expect. For they knew — indeed, they expressly admitted — that the financial condition of the company'was such that their antecedent indebtedness could not be paid in whole or in part. The form of the agreement finally reached with Neuberger is significant of their intention, for they presented to him outright 2,500‘ of the 3,500 shares of the corporation then outstanding.’ Under all the surrounding circumstances, I can reach no other conclusion than that they believed and intended that the mortgage in issue would effectively prefer them over other creditors of the company who were clamoring for payment.
Apart from the statute, I think the conclusion that this mortgage is null and void would necessarily follow upon grounds of equity and good conscience. The question of jurisdiction has been determined by a prior decision of this court. Karasik et al. v. People’s Trust Co., 241 Fed. 939.
A decree will be granted for the relief prayed for in the complaint. It must be settled on notice on or before December 31st.
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