122 F. 115 | U.S. Circuit Court for the District of Western New York | 1903
This cause was heretofore considered by this court (108 Fed. 909), and the demurrers then interposed were sustained on the ground of multifariousness. In the. former bill of. complaint, relief was sought in equity by complainant as a minority stockholder, suing for herself and in behalf of other stockholders of defendant Buffalo School Furniture Company, and to recover treble damages, under the anti-trust act of July 2, 1890 (26 Stat. 209 [U. S. Comp. St. 1901, p. 3200.]). It was held that such damages were only recoverable in an action at law -by the complainant, and inured to her sole benefit, while the equitable relief sought by the bill was for the benefit of the corporation in whose behalf the suit was brought, and therefore inconsistent remedies were averred in the bill. The order sustaining the demurrers to the original bill recites that they are sustained solely and only upon the ground of multifariousness, although the precise questions here involved were also then considered. The opinion of the court, however, merely indicated an impression that the bill, with the inferences deduced therefrom, sufficiently averred a conspiracy in restraint of trade and commerce to enable the complainant to give evidence upon the trial in support of the charge. Subsequently the parties appeared before the court in settlement of the terms of the order, with the result that the restrictive order sustaining the demurrer because of multifariousness, only, was entered. On appeal the Circuit Court of Appeals affirmed the de
The grounds of demurrers may be subdivided and briefly summarized into four general grounds, as follows: (1) Want of equity; (2) complainant has no legal capacity to sue; (3) that the cause assigned for equitable relief does not entitle complainant to the character of the relief prayed for; (4) defect of parties plaintiff or defendant, in that there are interested stockholders, without whose presence relief ought not to be granted. The pleas are supported by the answers, which deny the existence of the conspiracy so alleged in the bill. This appears to be in compliance with equity rule 32. The plea of the American School Furniture Company, a New Jersey corporation, hereinafter referred to as the American Company, and of the Buffalo School Furniture Company, hereinafter referred to as the Buffalo Company, substantially allege that the deed of conveyance by the latter company to the former was made authoritatively and pursuant to a majority meeting of the stockholders held at Buffalo, N. Y., on January 17, 1900, at which meeting a resolution was adopted by holders of upwards of two-thirds of the capital stock, ratifying the transfer of property to the American Company. The plea of the individual defendants, hereinafter referred to as the directors, in addition to the matters stated in the plea of both corporations, alleges that at such meeting, ratifying the transfer of property by the Buffalo Company to the American Company, a resolution was adopted discontinuing the business of the corporation, and dividing the property and assets that should remain after paying the liabilities. The plea of the defendants Oakman and Turnbull alleges that they are trustees of a mortgage made by the defendant American Company subsequent to the transfer to it by the Buffalo Company, and covering that property, and that the bondholders whose interests are represented by them loaned their money in good faith and for value, without notice or knowledge of any of the matters charged in the bill.
The argument'has proceeded on the theory that the entire case is sufficiently shown by the pleadings, and that nothing more definite would be disclosed on the hearing. The complainant having brought the plea on for argument, the facts therein stated must be considered as true. State of Rhode Island & Prov. Plantations v. State of Mass., 14 Pet. 210, 10 L. Ed. 423; 1 Dan. Ch. Pl. & Pr. (4th Ed.) 696; U. S. v. Dalles Military Rd. Co., 140 U. S. 599, 11 Sup. Ct. 988, 35 L. Ed. 560; Hatch v. Bancroft-Thompson Co. (C. C.) 67 Fed. 802; 1 Garland & Ralston, 272. It is indisputable that, if a right to equitable relief arises from the averments of the bill, a remedy for the
At the outset, complainant’s contention that the sale by the directors to the American Company pursuant to resolution adopted at a regular meeting of the stockholders is ultra vires must be held unsound. The question as to whether the majority stockholders possess the power to direct a transfer of the property of the corporation to the American Company will first be considered. The Code of West Virginia of 1899 (chapter 53, § 56), under the laws of which state the Buffalo Company was organized, provides:
“The stockholders may at any time in general meeting resolve to discontinue the business of the corporation, the majority of the capital stock being present and voted in favor of such discontinuance; and may divide the property and assets that may remain after paying all debts and liabilities of the corporation. * * * As’soon as practicable, after such resolution is passed, the stockholders shall cause ample funds and assets to be set apart, either in the hands of the trustees or otherwise, to secure the payment of all debts And liabilities of the corporation.”
By section 59 of the same chapter it is provided that:
“When a corporation shall expire or be dissolved its property and assets •shall * * * be subject to the payment of the liabilities of the corporation, And the expenses of winding up its affairs; and the surplus, if any, then remaining, to distribution among the stockholders according to their respective interests.”
This court will take judicial notice of this statute. It substantially appears by the pleadings that, of the 3,500 shares of stock of the Buffalo Company, 2,870 shares, excluding complainant’s 560 shares, those of George P. Cary, 60 shares, .and the single share of Melbert B. Cary, favored the transfer or subsequently ratified the acts of the board of directors in making a sale of the property to the American Company. I am quite well satisfied that the transfer is capable of ratification, provided the acts of the corporation in making the sale were intra vires, and provided the acts of the directors were free from actual fraud. Smith v. Ferries & C. H. R. Co. (Cal.) 51 Pac. 710; Leavenworth v. Chicago, etc., Ry. Co., 134 U. S. 688, 10 Sup. Ct. 708, 33 L. Ed. 1064; Cook on Corporations, § 707; Nye v. Storer (Mass.)
“It cannot be denied that minority stockholders are bound band and foot to tbe majority in all matters of legitimate administration of tbe corporate affairs, and tbe courts are powerless to redress many forms of oppression practiced upon tbe minority, under tbe guise of legal sanction, wbicb fall short of actual fraud. This is a. consequence of tbe implied contract of association, by wbicb it is agreed, in advance, that a majority shall bind tbe whole body as to all transactions within tbe scope of tbe corporate powers. But it is also the essence of tbe contract that tbe corporate powers shall only be exercised to accomplish tbe objects for wbicb they were called into existence, and that the majority shall not control those powers to pervert or destroy the original purposes of tbe corporators.”
In McMullen v. Ritchie (C. C.) 64 Fed. 253, the following language is employed to define the powers of directors of the corporation with respect to its policy and management:
“Questions of policy of management, of expediency of contracts or action, of adequacy of consideration not grossly disproportionate, of lawful appropriation of corporate funds to advance corporate interests, are left solely to the honest decision of tbe directors. Their powers are without limitation and free from restraint. To bold otherwise would be to substitute the judgment and discretion of others in tbe place of those determined on by tbe scheme of incorporation.”
See, also, Cook on Corporations, § 683.
There can be little doubt that the majority stockholders acted within
“Although the control of the voting majority of the association may have been one of the appellant’s motives for making its simultaneous purchases, it is inconceivable that any one of the five vendors could have repudiated his contract to sell to appellant upon the ground that such sale, if consummated, would enable appellant to obtain such control. The public interest would be amply protected by invalidating the agreement of the association for the control of prices, and the disconnected agreement of sale would be enforced as other contracts.”
The sales and contracts which were alleged to be in restraint of trade in the Trenton Potteries Case, and which were subsequently acquired by the complainant, were regarded by the court as unobjectionable. In reviewing the authorities upon this question, the court announced this principle, which appears to apply to the point under consideration:
“While contracts to restrain or limit competition in the production of that ware may be repugnant to the public interests, such a restraint or limit may result from contracts which the courts are bound to enforce.”
This view of the law does not stand entirely unsupported. High legal authority apparently justifies the language quoted and its application. In Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419, 60 Am. Rep. 464, Judge Andrews, speaking for the Court of Appeals, in a very exhaustive opinion, says:
“We are not aware of any rule of law which makes the motive of the covenantee the test of the validity of such a contract. On the contrary, we suppose a party may legally purchase the trade and business of another for the very purpose of preventing competition, and the validity of the contract, if supported by a consideration, will depend upon its reasonableness as between the parties.”
Added force to these suggestions is found in the more recent case, decided in the United States Supreme Court. Connolly v. Union Sewer Pipe Co., 184 U. S. 547, 22 Sup. Ct. 431, 46 L. Ed. 679. Here
“The defense cannot be maintained. Assuming, as defendants contend, that tbe alleged combination was illegal if tested by the principles of the common law, still it would not follow that they could, at common law, refuse to pay for pipe bought by them under special contracts with the plaintiff. The illegality of such combination did not prevent the plaintiff corporation from selling pipe that it obtained from its constituent companies, or either of them. It could pass a title by a sale to any one desiring to buy, and the buyer could not justify a refusal to pay for what he bought and received by proving that the seller had previously, in the prosecution of its business, entered into an illegal combination with others in reference generally to the sale of Akron pipe.”
The contract between the complainant and defendant was held to be collateral to the alleged agreement between complainant and other corporations, whereby an alleged combination was formed for the sale of the industry in which they were respectively engaged. Accordingly, it is earnestly contended in behalf of defendants that the conspiracy charged is not against the Buffalo Company, but against the public, and therefore no damages resulted to the corporation of which complainant is a stockholder. Great stress is laid upon the point that the transfer of the good will and plant of the Buffalo Company is entirely separate and independent of any intention by the directors of the American Company to create a monopoly in restraint of trade. Careful consideration of the questions here involved constrains me, though with hesitation, to accept this view of the transaction charged in the bill. The president and secretary, both of whom are defendants and directors, acting on the authority of a majority of the stockholders, had power to- transfer the assets of the Buffalo Company. By the .bill it appears that a resolution was passed by the Buffalo Company, at what purported to be a general meeting of the stockholders, held at Buffalo, N. Y., on January 30, 1899, authorizing the president and secretary to execute and deliver deeds and other papers which might be necessary to transfer the property to the American' Company. This meeting was attended only by the owners of 1,750 shares of stock—less than a majority. Subsequently the action then taken was ratified and reaffirmed by an undoubted majority of the stockholders of the Buffalo Company on January 17, 1900, as appears by the pleas. The action of the Buffalo Company was, under the circumstances, a question of policy of management, with which courts are reluctant to interfere. Such, I think, is the tendency of the cases. The rule established by the Supreme Court in the Connolly Case by analogy is applicable to the case at bar. The act of sale arid transfer was a lawful act of the corporation. The American Company was, not engaged in dealing with an agent whose
In referring next to the actual transfer and its effect, it must not be overlooked that this was an executed contract. The pleas in bar 'allege that all prior transactions leading to a sale of the property and a dissolution of the corporation were ratified by a positive majority of the stockholders on March 2, 1899. Having in mind the legal distinction between the right which the corporation possesses to rescind a contract on account of fraud and' by reason of acts claimed to be ultra vires, how can it be insisted that the solemn con
“But assuming the transaction to have been ultra vires, the defense as interposed would still be unavailable. The plaintiff has the stock, and has paid for it. It cannot be recovered back by the defendant, for the transaction is completed and closed. Whilst the contract remained executory, if it was unauthorized, a stockholder or person interested might have interfered by injunction, and prevented the transfer of the property of the plaintiff to the defendant; but, the contract having become executed, the title to the stock now vests in the plaintiff, and it has the power to sell or dispose of the same.”
Cincinnati R. Co. v. McKean, 12 C. C. A. 14, 64 Fed. 36; Parish v. Wheeler, 22 N. Y. 494; Citizens’ Bank v. Hawkins, 18 C. C. A. 78, 71 Fed. 371; Louisville Trust Co. v. Louisville, etc., R. Co., 22 C. C. A. 378, 75 Fed. 467; Board of Commissioners v. Cornell Univ., 6 C. C. A. 296, 57 Fed. 153; St. Louis, etc., R. Co. v. Terra Haute, etc., R. Co., 145 U. S. 393, 12 Sup. Ct. 953, 36 L. Ed. 748. The doctrine is concisely stated in Thompson on Corporations, § 6023, as follows:
“It is a principle of universal application that whenever an illegal, immoral, or prohibited contract has been duly executed on both sides, the law will not lend its aid to either of the parties for the purpose of unraveling it and enabling him to recover what he may have lost through it. In such cases the governing maxim is, ‘In pari delicto potior est conditio defendentis.’ When, therefore, a contract with a corporation, the making of which is beyond its granted powers, has been duly executed by both parties, neither of them can assert its invalidity as a ground of relief against it.”
Complainant asks that all the property sold by the Buffalo Company to the American Company be decreed to be reconveyed and restored to the grantor; that the directors and American Company be decreed to pay all damages sustained; and for further relief. Assuming an ultra vires act to have been committed by the directors, acting for the Buffalo Company, which consisted of a contract of sale which culminated in an actual grant of property, with nothing remaining to be done to actually carry out the original intent of the parties, a court of equity, in the absence of actual fraud, would scarcely be justified in granting the extraordinary relief sought. The
“Any corporation may take real estate, stock, bonds and securities in payment, in whole or in part, of any debt, bona fide, owing to it or as a security therefor, or may purchase the same if deemed necessary to secure or obtain payment of any such debt in whole or in part, and may manage, use and dispose of what has been so taken or purchased as a person might do.”
This would appear to apply to corporations actually engaged in carrying out the purposes of their creation. The Buffalo Company, as we have seen, by affirmative act of the majority stockholders, is practically terminated, and its property sold. It has been held that the prime inquiry, when a corporation has sold its property and taken securities in stock in another corporation, in the absence of express statutory permission to accept such stock, is whether the sale was in good faith, and whether it is the purpose of the corporation to distribute the proceeds among its shareholders. It is asserted that the implied power to wind up the affairs of a corporation and dispose of its property authorizes a sale for stock in another corporation. Abundant authority is found to fortify this claim. In McCutcheon v. Merz Capsule Co., 19 C. C. A. 108, 71 Fed. 787, 31 L. R. A. 415, the Circuit Court of Appeals for the Sixth Circuit says:
“By the agreement of November 29, 1893, which we are asked to sanction, and specifically enforce, the Merz Capsule Company .contracted not only to sell its entire manufacturing plant, including patents, processes, and good will, to the new corporation, when organized, but that it would never again engage in the same business. If its purpose had been in good faith to wind up the affairs, and distribute the price to be paid among its stockholders, or to convert the same into money for purposes of distribution, the transaction might be supported, under the authorities heretofore cited, although payment was to be received in stock and bonds of the new company. The implied power to wind up its business and to make a sale of its property would probably authorize a sale for stock in another corporation.”
Holmes v. Holmes, supra; Miners’ Ditch Co. v. Zellerbach, supra; Thomas v. Railroad Co., 101 U. S. 71, 25 L. Ed. 950; and cases already cited.
I do not deem it necessary to discuss any of the other propositions argued on the hearing. The views here expressed suffice to sustain the demurrer on the general grounds specified. In reaching the conclusion that the demurrers must be sustained for lack of equity, the pleas have been considered as credibly presenting the subsequent transactions of the Buffalo Company concerning the ratification of the prior acts of the president and secretary, and the action of the majority stockholders to terminate the corporation. I do not underr stand that it is claimed by complainant that this court has the power to take cognizance of .the alleged illegal combination because of the provisions of the anti-trust act of 1890 (26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]). It has been many times decided, and no longer admits of any question or doubt, that the only party entitled to maintain a bill in equity for injunctive relief for violating the provisions of the anti-trust act is the United States attorney, at the instance of the Attorney General. Pidcock v. Harrington (C. C.) 64 Fed. 821; Southern Indiana Express Co. v. U. S. Co. (C. C.) 88 Fed. 659; Connolly v. Union Sewer Pipe Co., supra.
The views chiefly discussed herein are at variance with those contained in a paragraph at the close of the former opinion in this case. After holding the bill then before me multifarious, it was said that the inferences to be drawn from the averments of the bill were sufficient to enable the complainant to give proof of the charge of conspiracy and ultra vires acts. Although, as already stated, the questions here considered were then before me, the only questions which received the closest consideration, and upon which an order was made, were those bearing upon the multifariousness of the bill. The court then held the bill multifarious, and nothing more. The expressions holding contrary view were therefore inadvertent, and ought not to .be regarded as an adjudication on those points.
It follows from the foregoing that the bill must be dismissed, with costs, and the pleas of the various defendants allowed.' The complainant, however, is entitled to take issue, if she shall see fit, upon the facts stated in the plea, by filing replication within 30 days from the entry of an order in accordance with this opinion.
6. Validity of monopolistic contracts as affected by public policy, see-note to Cravens v. Carter-Crume Co., 34 C. C. A. 486.