No. 632. | Tex. App. | Jan 26, 1928
Lead Opinion
Dismissed for want of prosecution.
Addendum
The suit is by appellants, three alleged stockholders in the American Sulphur Fertilizer Company, Inc., against said corporation and its officers and directors. Appellants allege, in substance, that said corporation has but little property and no money nor credit; that there are judgments against said corporation, and if same are not paid the property will be sold one article or part at a time, and if so sold said property will sell for very little, but if the sulphur land, machinery, etc., for mixing said mineral are all sold together, it would sell for enough to pay all debts and leave a balance to be distributed among stockholders; that the right of said corporation to do business in Texas has been forfeited for nonpayment of franchise tax, etc.; that said corporation has no right to do business in Texas, etc., and that it is the duty of its officers as trustees to wind up the affairs of said corporation, pay its debts, and distribute the remainder among its stockholders, etc.; that said corporation has failed to pay in or cause to be paid the unpaid portion of its capital stock, etc.; that three of the directors, which are a majority, in violation of the law and of their duty as directors, and in fraud of the rights of the corporation and its stockholders, have, as heretofore established by the judgment of the court in an agreed judgment entered with the consent of said three directors, heretofore entered into contracts on behalf of said corporation in which they had a personal interest and from which they hoped to derive a personal benefit to themselves in fraud of the rights of said corporation, its stockholders, and these plaintiffs. Appellants' only prayer was for the appointment of a receiver. Taking the allegations of appellants' petition to be true, as we must in passing upon the demurrer, it shows sufficient grounds, to wit, insolvency of the corporation, to justify a forfeiture of its charter. Article 1387, §
Appellants allege that the corporation's right to do business in Texas has been forfeited and that it is not doing business, and alleges facts tending to show it is insolvent, and that at some time in the past three of the directors, a majority, who are now acting as trustees, made a contract on behalf of the corporation out of which they expected to reap a personal benefit, but these allegations are insufficient to warrant the appointment of a receiver at the suit of these stockholders. Appellants allege no claim against the corporation or lien upon its property. The only object of the suit appears to be the appointment of a receiver. The general rule is that a bill which has for its sole object such appointment will not be entertained, and a suit therefor cannot be maintained where that is the primary object, and no cause of action or equitable relief is otherwise stated. Continental Trust Co. v. Brown (Tex.Civ.App.)