267 Mass. 584 | Mass. | 1929
This case is before us on an appeal from an order sustaining a demurrer to the plaintiff’s declaration. The declaration is in three counts. The action is in tort or contract.
It is alleged in the first count that on August 28,1922, the plaintiff owned a number of shares of the common stock of the American Ammonia Company which represented the voting
The second count is substantially similar to the first count, except that it is there alleged that “the defendant, although frequently requested, wilfully, and intending that the plaintiff should be injured thereby” failed to take any action. The third count differs from the second in alleging that the defendant “thereby converting to his, the defendant’s own use” the plaintiff’s stock in consequence of which said American Ammonia Company lost all its assets. The demurrer is a general one.
The agreement recites that The Company is heavily indebted in the sum of $146,704.68; that it has disputed claims against “certain parties to this agreement”; that it is desired by all parties that the affairs of The Company be settled, “to the end that there may be no further litigation or threats of litigation, between . . . the parties interested in said corporation”; that the said corporation may be unhampered, in so far as the parties to this agreement may provide, in pursuing its regular business without embarrassment from attachments or judgments or threats of litigation, and may be in a position to procure the necessary capital for carrying on its business, either by borrowing or-by selling its stock. The agreement sets out that The Company has certain notes of one Cheney as assets. It provides that the Central Trust Company and other parties shall release The Company and that The Company shall release them from all claims; that The Company agreed to deliver its preferred stock to these parties in an amount equal to the amount of the debts owed them, and to deliver to trustees the Cheney notes “for the purpose of collecting any money due it” from Cheney.
By the seventh clause of the agreement “The said James J. Loughery hereby agrees to assign . . . unto Joseph H. O’Neil . . . Elmer Bright .... Charles H. Olmsted . . . thirty-eight thousand (98,000) shares of the Common Capital
The agreement was signed by The Company by its vice president and treasurer, by the Central Trust Company, and by Horace Guild, James J. Loughery, Morton B. Howard, George B. Howard and Elbridge B. Anderson, and has annexed to it the statement, “We, the undersigned, trustees named in the foregoing instrument, hereby accept the said trust upon the terms hereinabove incorporated.” This is signed by Hurley and Daly, trustees of the Cheney notes, and also by Bright and O’Neil. It was not signed by Olmsted or Webster.
By the agreement of August 12, 1922, the parties agreed to form a voting trust and three individuals were named as trustees. By the mere naming of a person as trustee he does not become one. He must accept the trust. See Evans v. John, 4 Beav. 35. See Carruth v. Carruth, 148 Mass. 431, 434; Sells v. Delgado, 186 Mass. 25, 28. Bright and O’Neil accepted the appointments as trustees. But it does not appear that either Olmsted or his successor Webster ever assented to the agreement or accepted the trust. Where it is required by a trust agreement that a certain number of
Even if it be assumed that the voting trust did come into existence, the declaration fails to show any occasion for the trustees to act. The power of the trustees was limited to voting at meetings. Lawrence v. Curtis, 191 Mass. 240, 243, 244. There is no greater power given them by the agreement. There is nothing in the agreement to support the allegation that the management and control of the corporation passed to the trustees. The agreement provided that the stock was transferred to the trustees, in order that they might have voting control of the majority of the common stock and “may determine the election of a Board of five (5) directors.” This agreement merely gave to the trustees the right to vote the stock held by a certain stockholder. The management and direction of the corporation was vested in the directors and not in the stockholders. Hayden v. Perfection Cooler Co. 227 Mass. 589, 592.
It is not alleged in the declaration that a stockholders’ meeting was ever held at which directors could have been elected, nor that the defendant had any authority under the agreement to call such a meeting, nor that any occasion arose when the defendant could have acted as a voting trustee. The declaration does not state that the shares which were to be transferred to Bright, O’Neil and Olmsted were ever recorded in their names, and that only shareholders of record are entitled to vote at a stockholders’ meeting. J. H. Went-worth Co. v. French, 176 Mass. 442, 443. Barrett v. King, 181 Mass. 476, 478. The declaration alleges that the defendant failed to take any action toward the election of directors and the procuring of capital, in consequence of which The Company lost its assets to the damage of the plaintiff. There is nothing in the declaration to show in
The second and third counts allege that the defendant, wilfully intending harm to the plaintiff, failed to act. The defendant was under no legal obligation to act; his motives, therefore, were immaterial. Plant v. Woods, 176 Mass. 492, 499.
The third count states no cause of action. The custody of the stock according to the receipt was in O’Neil and Bright. Neither would have the right to return it without the action of all the trustees. Boston v. Bobbins, supra. Furthermore, the defendant came into possession of the stock rightfully. He never disposed of it and, so far as appears, was never asked to deliver it to the plaintiff; and no demand was made on him for its return. Even if the plaintiff was entitled to possession the defendant could not be held guilty of a conversion until demand had been made. There is nothing in Hellier v. Achorn, 255 Mass. 273, 284, in conflict with what is here decided. Baker v. Lothrop, 155 Mass. 376, 378, holds that where the taking is tortious or there has been an actual conversion demand and refusal are unnecessary.
Without considering the other objections urged by the defendant, the demurrer was sustained properly. The order sustaining the demurrer is affirmed.
So ordered.