(after stating the facts). 1. This was an action instituted by one of the minority shareholders of a corporation to recover in part assets not belonging directly to such shareholders, but in effect to recover assets belonging to the corporation itself.
A stockholder does not acquire any' estate in the property of a corporation by virtue of his stock; the full legal and equitable title thereto is in the corporation, .and a cause of action for the recovery of its property or for a violation of its rights thereto is in the corporation. The management and control of the affairs of a corporation rest with its board of directors, and the general rule is that courts will not ordinarily interfere at the suit of a minority shareholder to override and control the discretion of the directors in the management of the business and affairs of the corporation. The majority of the stockholders ordinarily have the right to conduct and control its affairs and property.
It is urged by counsel for defendants that the cause of action, if any, set out in the complaint is that solely of the corporation; and, inasmuch as appellants represent the majority of its stock, they have the right to manage its affairs and, within their own discretion, to determine all questions relative to the corporate property and management; that therefore they have the right to make settlements with those who have business relations -with it, and cannot be compelled to litigate where they do not consider it advisable or just to do so. On this account, they insist that the demurrer to the complaint should have been sustained.
But, while the directors of a corporation have the management of its business and property, nevertheless they also occupy a relation of trust with reference to its stockholders. The stockholders own the shares, whose value is dependent upon and is affected by the conduct of the directors, and therefore the directors owe certain fiduciary duties to the stockholders. The cause of action primarily exists in the corporation for the recovery of its assets and for the violation of its rights to same. But where the directors are guilty of breaches of trust in their management of the affairs of the company, and through fraud or gross negligence refuse, or virtually refuse, to institute an action for the recovery of its property wrongfully diverted or of its funds misappropriated, then a stockholder has a right to maintain in equity such an action to secure those rights and prevent a failure of justice. This right of action arises to the shareholder whenever the directors and officers of the corporation are pursuing a course for -their own personal gain and in fraud of the rights of the shareholders.
In the case -of Hawes v. Oakland,
And, as is said in the case of Miner v. Belle Isle Ice Co., 17 L. R. A. 412, “there is no doubt of the power of a court of equity, in case of fraud, abuse of trust, or misappropriation of corporate funds, at the instance of a single stockholder, to grant relief, and compel a restitution; and where the holders of -the majority of the stock control the directorate,' and are themselves the wrongdoers, without any showing that the directors have been requested, or the corporation has refused, to act.” 3 Pomeroy, Eq. Jur. § 1095; Ex parte Booker,
Where, therefore, tire officers of a corporation fraudulently misappropriate the corporate funds in any manner, and its managing body refuses, or in effect refuses, to seek relief against the wrongdoers, a single stockholder may institute a proceeding in 'his own name to secure the relief to which the corporation is entitled; and in such suit he should make the corporation a party. We think that the complaint in this case made sufficient allegations to invoke the aid -of a court of equity at the instance of one of the minority stockholders of the corporation.
2. The chancellor found that Powell, one of the directors, and the chief officer of the corporation, had misappropriated the funds of the corporation and had used same in payment for the Devereaux and McClean stocks, which he purchased. He declared that a trust thus resulted in favor of the corporation which a court of equity would enforce, and that thereby the corporation became the equitable owner of the stock so acquired.
It is well settled that whenever a trustee purchases property with trust funds, and takes the title thereto in his own name, equity will regard such purchase as made for the benefit of the cestui que trust. In passing upon this question, the Supreme Court of fhe United States in the case of National Bank v. Insurance Company,
But, in order to constitute such a resulting trust, the payment of the purchase money must be made before or at the time of the acquisition of the property; a subsequent payment will not by relation attach the trust to the original purchase. In the case of Botsford v. Burr, 2 Johnson’s Ch. (N. Y.) 415, Chancellor Kent said: “The trust must have been coeval with the deeds, or it cannot exist at all. * * * The trust results from the original transaction at the time it takes place, and at no other time, and it is founded on the actual payment of the money and on no other ground. It cannot be mingled with any subsequent dealings whatever.” Rogers v. Murray, 3 Paige, Ch., 390; Dyer v. Dyer, supra.
Following this doctrine, this court in the case of Sale v. McLean,
And in DuVal v. Marshall,
In the case of Milner v. Freeman,
In the case at bar the undisputed testimony shows that Powell purchased from McClean and Devereaux their stock in the corporation in May, 1904. He borrowed the money with which to pay for this stock from the Central National Bank of Carthage, Missouri, and executed to that bank his note therefor with personal security, and also attached thereto as a pledge the stock thus purchased. When that note matured, he borrowed the same amount from the Bank of Aurora, of Aurora, Missouri, and with the proceeds paid the note. He then executed to the Bank of Aurora three notes for the money thus loaned .to him, as follows: $1,500 maturing February 25, 1905 ; $1,500 maturing March 25, 1905; $2,200 maturing April 18, 1905. The evidence tended to prove, and the chancellor so found, that when these notes matured Powell paid them with funds in his hands which belonged to the Red Bud Realty Company. In fact, the evidence proved that he gave checks of the Red Bud Realty Company upon the funds of that corporation, on deposit in the Missouri-Lincoln Trust Company of St. Louis, Missouri, to pay these notes severally on the dates of their maturity. Without detailing this testimony, we think 'that it abundantly sustains the chancellor in his finding that Powell thus used the money of the Red Bud Realty Company with which to pay these notes. But the evidence as conclusively establishes the fact that he did not use the money of the Red Bud Realty Company at the time he purchased the stock, but that he acquired and purchased the shares, long before he used the funds of the corporation, with money which he obtained upon his own credit. The purchase of the shares and the taking of the money of the corporation were not coeval, and were not one transaction. The money of the corporation was used long after the purchase; and, while it did go to pay the notes of Powell, it was in fact in no way connected with the transaction of the purchase of the shares. Powell had the right to purchase the stock from the shareholders of the company for his individual benefit; and, although a director and officer of the corporation, he violated no trust when he did so. Nor do we think that the testimony warrants any finding that Powell, at the time he made the purchase, contemplated paying for these shares of stock with funds belonging to the corporation. At the time he made the purchase he was not the treasurer of the corporation, nor did he have any moneys of the corporation in his hands. He made the purchase openly, and the appellees, who. were the other shareholders of the corporation, knew of his purchase of these shares of stock many months before he made a suggestion of managing the sale of lots, and recognized his .ownership thereof. He purchased the stock with ¡money of his own, secured in the ordinary and usual course of business. He pledged the 399 shares of stock owned by himself from the time of the creation of the corporation, and also gave a perfectly solvent individual as surety on his note to obtain the money, as well as pledging the shares thus purchased. He was engaged in other business, and had other property at the time, and was perfectly solvent. At the time he used the .money of the corporation there was really due from tbe corporation to Powell, for the expenditures which he had made for the expenses of the sale of the lots and for his interest in the net proceeds of such sales, as a shareholder (which was substantially an one-fifth interest), an amount largely in excess of the money of the corporation which he used to pay his individual debts. We cannot say from the testimony or from the circumstances of this case that he did not act in good faith when he purchased the stock from McClean and Devereaux, or that he contemplated at that time paying therefor with money which he would subsequently obtain wrongfully from the corporation.
But counsel for appellee urge that when Powell misappropriated the funds of the corporation in February and March, 1905, and with such funds paid the notes which he had given to the Bank of Aurora, a constructive trust in favor of the corporation was impressed upon the shares of stock which Powell had purchased, because the stock was but the product or substitute for the funds of the corporation. They invoke the rule in equity that all property charged with a trust continues subject to and affected by the trust, however much it may be altered or changed in its nature or character. This is a well established doctrine of equity. Courts of equity will protect the rights in property taken by a wrongdoer, and will follow it through whatsoever changes and transmutations it may undergo in his hands. As is said by Prof. Pomeroy: “Whenever one person has wrongfully taken the property of another and converted it into a new form, the trust arises and follows the property .or its proceeds.” 3 Pom. Eq. Jur. § 1051.
The reason of the doctrine is stated by Lord Ellenborough in the case of Taylor v. Plumer, 3 Maule & S. 562, in language that 'has been often quoted: “For the product or substance for ithe original thing follows the nature of the thing itself, so long as it can be ascertained to be such, and the right only ceases when the means of ascertainment fail.”
But, before such a trust arises, it is essential that the fund thus wrongfully appropriated and converted be traced to the acquisition of the new species of property or investment upon which it is sought to impress the trust. The misappropriated funds must be traced to and located in the changed form or species of property. It can not be pursued and located in the general mass of the wrongdoer’s property because such wrongdoer has incurred indebtedness generally in the acquisition of the general -mass of his property and has subsequently applied the misappropriated funds to the payment of his debts generally.
In the present case Powell simply owed the Bank of Aurora for money which he had borrowed, and to secure the payment of that loan he had pledged the M-c-Clean and Devereaux stocks and other stock. It was the same as if he had given to the bank a mortgage upon land or other property owned by him to secure the debt due by him to the bank. When this debt to the bank matured, he used the funds of the corporation with wihich to pay that indebtedness. The funds of the corporation thus passed to the bank to pay the debt díte to it. The funds were not converted into the stocks. Nor can it be said that the funds are traced to or located in the stocks any more than it can be said that they can be traced to and located in -any -other property then owned by Powell, or to any other property owned by him and pledged for the debt of this bank. The moneys of the corporation only went to discharge the debt that he owed. To the extent that the funds of the corporation wrongfully taken discharged a lien upon property owned by Powell equity would impress upon such property still i-n the hands of Powell a lien for its repayment.
We are cited to the case of Atkinson v. Ward,
And so in the case in hand the corporation has a lien in equity upon the shares of stock which Powell pledged to the Bank of Aurora to secure his debt to it, because Powell used the money of the corporation wrongfully and applied it to the discharge of that debt and of the lien on that property. Powell, however, did not with the funds of the corporation acquire these shares of stock, nor have these funds been converted into these shares or into any property that has been transmuted into these shares. It follows that these shares of stock did not in equity become the property of the corporation. The corporation has only a lien thereon to the extent of the debt secured thereby which was discharged with its funds. But it is not necessary in this case to impress upon the shares of stock which were pledged to the Bank of Aurora a lien in favor of the corporation for the repayment of the money of the corporation which Powell used to discharge said debt to the bank and the lien on these shares of stock, by way of this equitable construction. Powell is answerable for all funds of the corporation which he collected and must account therefor; and for his indebtedness to the corporation the statute gives to the corporation a lien on the stock in his own name, and as will be seen hereafter the stock acquired from McClean and Devereaux was pledged to the corporation to secure all such indebtedness; so that the corporation had a lien thereon for all indebtedness due to it by Powell, including any funds he misappropriated.
3. The ohancellor found that Powell's account of his expenses and expenditures was not supported by proper and satisfactory testimony; that his dealings with, and misappropriation of, the funds entrusted to his charge tainted his account with such suspicion that he disregarded it, and thereupon determined, from the other testimony in the case, the amount that should be justly and equitably allowed him for said expenses incurred and expenditures paid out by him for the corporation. We can not say that this finding of the chancellor is contrary to the clear preponderance of the testimony. Powell occupied a position of trust with reference to the corporation, and also a fiduciary relation to its shareholders. He was its chief officer and, as its agent, had collected large sums for it. These he mingled with his own funds, he says himself; and the chancellor has found (and we think his finding is sustained by the evidence) that he used the money of the corporation in order to pay his own debts.
In the case of McNeil v. Gates,
The expenses and expenditures for which Powell seeks credit were incurred, he claims, in making the sale of the lots. The items that he names are expenses of maintaining an office and the payments made by him for advertising and to agents. He was at the time engaged also in the management of an individual business of his own in which he maintained an office and incurred the same character of expenses for which he asks reimbursement from this corporation. The testimony tends to prove that he mingled his own affairs and business with those of the company, and we do not think that the court abused its discretion in finding that hd's accounts of these expenses were surrounded with doubt, and therefore were not satisfactorily established.
He did not present proper and competent vouchers of his expenses for the payments claimed to have been made to agents and for advertising. He claims that the original books and accounts were accidentally destroyed by fire, and on this account were not produced; but we cannot say from the testimony that the chancellor clearly erred when he disregarded his account and allowed him all these expenses and expenditures upon the basis of $15 per lot. The testimony tends to prove that Powell stated that the lots could be sold upon the plan which he suggested for $5 commission to agents per lot «and $5 per lot for advertising, or at most for $15 per lot for commissions and expenses. The chancellor allowed him for his expenses and expenditures this largest amount.
It is urged that this account was presented to the board of directors of the corporation at the meeting held in October, 1906, at Tittle Rock and by it was approved; that the discretion and right to approve the account was within 'the power of the managing body of the corporation, and its action should, therefore, be conclusive upon the court. But the chancellor found that the meeting of the alleged directors, and also the meeting of the stockholders at that time and place, were illegal, and the proceedings then had void. From the findings of the chancellólas to the provisions of the articles of incorporation and by-laws of this company, and that proper notice was not given of these meetings, we think the chancellor was correct in his conclusion in holding that the meetings were not legally held, and that the actions there taken were not binding. 1 Thompson on Corporations, § § 689-709-710; 10 Cyc. 321; Simon v. Sevier Ass’n,
It is also urged that the master made a finding approving these items of the account, and that his finding should not be disturbed; but we do not so understand the report of the master. He only reported that the account was presented to and approved by this alleged board of directors at said meeting in Tittle Rock. He does not state that he had himself examined the various items of the account, or that he had taken any testimony relative to the items thereof other than the account itself which was filed by Powell; nor does he state that he finds that these items of the account are correct, and that they should be allowed. The report and findings of a -master appointed by the court of its own motion, however, are not conclusive upon the chancellor. They are only advisory. While they are highly persuasive, and should not be lightly disregarded, the chancery court has the power, and it is its duty, to pass its own judgment upon the findings of the master in the light of the evidence adduced. Claypool v. Johnston,
4. It is urged by counsel for Powell that he was entitled to compensation for services rendered by him relative to the sale of the lots which were made through his agency. For these services he asked for an allowance of $1,500, and the chancellor refused to allow him any compensation therefor. Under the testimony adduced in the case, we cannot say that the chancellor erred in this ruling. Powell was the president of the corporation, and one of its chief stockholders. The company was a joint enterprise for the promotion of the sale of the lots of a townsite, which was the sole asset of the corporation. All the members of the company were engaged in advancing the enterprise, and. none of them received compensation for such acts or services.
The president of a corporation is not entitled to any compensation for performing 'the, ordinary duties of his office unless a contract to that effect is made with him by its governing body. A contract may, however, be implied, on the part of the corporation to pay its president for special services rendered outside of the ordinary duties of the office. The question whether or not there was an implied contract to this effect is one of fact, rather than of law. In considering whether or not such a contract has been proved, the nature of the corporation and its business, the nature and extent of the services rendered, the comparative amount and value of the services of other officers of the corporation, and all other circumstances of the case, must necessarily be looked at and weighed, and it must also be considered whether or not the services were performed under circumstances showing that it was understood by the proper officials of the corporation and by the officer rendering the services that they were to be paid for. 7 Thompson on Corporations, § § 8581, 8582; 21 Am. & Eng. Ency. Law, p. 909; 10 Cyc. 322; Bartlett v. Mystic River Corporation,
In the case at bar there were only a few members of the corporation, and all of them were its officers. All of them were rendering some character of service and doing some act to advance and promote the enterprise owned by the company. Some of the officers other than Powell rendered valuable services for the corporation, and asked and received no compensation therefor. It rather appears from the testimony and circumstances that no officer was expected to charge or receive any compensation for such services. The services rendered by Powell consisted in superintending the agents selected by him to make the sale of the lots. The testimony tends to prove that the officers of the corporation understood that all the expenses incident to making the sale of the lots under the plan suggested by Powell were to foe paid on the commission basis, and that there would be no extra compensation paid to any officer for any services rendered in promoting or making the sale. The amount of the commission he was allowed by the chancellor for these expenses aggregated thirty per cent, of the gross proceeds of the sales, and, as found by the chancellor (which finding is sustained by the evidence), this was reasonably sufficient to pay for all expenses, expenditures and services in making said sales. Under these circumstances, we cannot say that the lower court erred in finding that there was no implied contract to pay .Powell for his alleged services. The finding of the chancellor relative thereto should, therefore, not be disturbed.
5. In his findings the chancellor charged Powell with interest upon the final balance, which it decided was due by him, from November 23, 1905, the day upon which the lots were sold under the plan proposed by him. In this ruling we think that the chancellor was in error. The sale of the lots and the collection of the purchase money therefor by Powell was made with the consent and concurrence of all the directors. Although he was not the treasurer of the company, nevertheless the other directors of the corporation acquiesced in his being the. custodian of these funds, and in his keeping them on deposit in a bank in St.- Rouis, which he did. He would not be chargeable with interest on funds which he was only holding as custodian thereof. There is no testimony that he used any of these funds, except the amount appropriated by him in payment of his notes to the Bank of Aurora. Por the money of the company so used by him he should be charged with interest, and for none other. 1 Perry on Trusts, § 468; 31 Cyc. 147; Hinckley v. Rd. Co.,
6. The plaintiffs in their complaint sought to obtain an allowance for an attorney’s fee for the prosecution of this suit. The defendants also sought credit for an attorney’s fee paid by them, as they claim, for the benefit of the corporation in defense of this suit, to which it was made a party. The lower court refused to make any allowance for attorney’s fees to either party, and we think it was right in thus ruling. This suit was instituted for the purpose, in part, of recovering assets of the corporation; but, under the view taken by this court of this case, it can only result in a settlement of the accounts of the various officers and shareholders with the corporation. Each of the parties to this suit had an account with the corporation, and the result of this litigation is to adjust those accounts. As to his own individual account, each party is an adversary in the suit, not only to the other shareholders but also to the corporation. As to such account, each party is endeavoring to lessen the amount due from him, and as to the accounts of the other parties he is endeavoring to enlarge them. The subject-matter of the suit in its result involves the individual rights and interests of each party, and does not in effect involve those of the corporation. Each party should, therefore, pay the fees of his own attorneys, and neither party should be given an allowance for such purpose.
It follows from the foregoing 'that the decree of the chancery court must be reversed. But from such portions of the findings of the lower court which we have approved, and from the evidence which -we have endeavored to carefully examine, we think that a just and equitable statement of the accounts of the parties can be made in accordance with the principles announced in this opinion. We will make the statement of these accounts, and the cause will be remanded with directions to enter a decree in accordance herewith.
The shareholders of the Red Bud Realty Company consist of J. C. South, Thomas iCombs, E. E. Doyle, R. X. DeGraw, W. V. Powell and Frank Tuttle, each of whom is the owner of 400 shares of the capital stock of the corporation, except W. V. Powell, who is the owner of 399 shares, and Frank Tuttle, who is the owner of one share. The following is a statement of the funds belonging to the corporation and the sources from which they are derived:
Amounts received by W. V. Powell:
From sale of 808 lots at $50 per lot..............$40,400.00
From Thomas Combs on printing, supplies, etc..... 1,250.25
Amount of interest on money used in payment of notes to Bank of Aurora:
On $1,500 from Feb. 25, ’05, to Oct. 15, ’06,
at 6 per cent....................$147.50
On $1,500 from Mar. 25, ’05, to Oct. 15, ’06,
at 6 per cent..................... 140.00
On $2,200 from Apr. 18, ’05, to Oct. 15, ’06,
at 6 per cent...................... 198.00 $485.50
Total funds received by W. V. Powell $42,135-75
Credits to which Powell is entitled in his account with the corporation:
Expenses in sale of 808 lots at $15 per lot........$12,120.00
Cash refunded on lots........................... 1,385.00
Cash paid for printing plant and supplies.......... 994-75
Total credits ................................$14,499.75
************
Total debits of Powell........................$42,135.75
Total -credits of Powell....................... 14,499.75
Balance -due by Powell to corporation..........$27,636.00
************
Account of Thomás Combs with the Red Bud Realty Company:
Amount received by Thomas Combs from sale of
lots, rents, etc .......................... • • • .$20,063.82
Credits:
Expenses, expenditures and salary.......$9,409.96
'.Gash for land to self.............'..... 3,000.00 12,409.96
Balance due by Combs to corporation..........$ 7,653.86
************
Statement of net funds belonging to corporation:
Funds due from Powell, as per above..............$27,636.00
Funds due from Combs, as per above.............. 7,653.86
Total funds of -corporation...................$35,289.86
************
Statement showing net amount due by W. V. Powell to corporation, payments having heretofore been made to shareholders as follows:
Net funds in hands of Powell....................$27,636.00
Amount heretofore paid to South... .$1,120.00
Amount heretofore paid to Combs.... 2,020.00 3,140.00
Net amount due from Powell for shareholders......$24,496.00
* * * * * * * * * * * *
Statement showing net amount due by Thomas Combs to corporation; payments having heretofore 'been made to shareholders as follows:
Net funds in hands of Combs......................$7,653.86
Amount heretofore paid to Powell... .$300.00
Amount heretofore paid to assignor of
Doyle .......................... 300.00
Amount heretofore paid to assignor of
DeGraw ........................ 300.00
Amount heretofore paid to South......3,040.00
Amount heretofore paid to Thos. Combs 300.00 4,240.00
Net amount due from Combs for shareholders......$3,413.86
Statement of various amounts due from corporation to the shareholders:
W. V. Powell:
His 399-2000 share in net funds, as per above........$7,040.33
Less amount received from Combs................ 300.00
Net amount due W. V. Powell from corporation... .$6,740.33
J. C. South:
His one-fifth share in net funds, as per above......$7,°57-97
Less am’t rec’d from Powell, as above. .$1,120.00
Less am’t rec’d from Combs, as above.. 3,040.00 4,160.00
Net amount due J. iC. South from corporation......$2,897.97
Thomas Combs-:
His one-fifth share in net funds, as per above........$7,057.97
Less amount received from Powell... .$2,020.00
Less cash from self.................. 300.00
Less amount now in hands belonging to
corporation .................... 3,4x3.86 5,733.86
$1,324.11
R. X. DeGraw:
His one-fifth share in net funds, as per above........$7,057.97
Less amount received by assignor, as per above...... 300.00
$6,757-97
D. D. Doyle:
His one-fifth share in net funds, as per -above........$7>°57-97
Dess amount received by assignor as per above...... 300.00
Net amount due D. D. Doyle from -corporation......$6,757-97
Frank Tuttle:
His 1-2000 share in net funds, as per above........$ 17-64
Summary -of net amounts due each shareholder from funds
of corporation:
To W. V. Powell....................$6,740.33
To J. C. South...................... 2,897.97
To Thomas Combs.................. 1,324.11
To R. X. DeGraw.................. 6,757.97
To D. D. Doyle .................... 6,757.97
T-o Frank Tuttle .................. 17-64
Total .......................$24,495.99
And the above will be pai-d out of said funds in -hands -of W. V. Powell, amounting to $24,496.
It appears from the testimony that after the alleged directors’ meeting, held at Dittle Rock, Arkansas, in October, 190(3, W. V. Powell paid to R. X. DeGraw and D- D- Doyle certain dividends. The amounts thus actually paid to them -by Powell should be deducted from the above balances found due to them, and the remainder only should be paid to them, and the amount payable by Powell to the -corporation should be reduced by the amounts so paid by him to DeGr-aw and Doyle after said meeting of October, 1906.
The shares of stock -of Powell, Doyle and DeGraw were in effect pledged to pay all indebtedness due by Powell to the corporation, and were primarily pledged to secure the distributive portions of that indebtedness which were payable to South and to Combs. Doyle and DeGraw have by their acts and conduct assented to this, and therefore .they, and Powell must be postponed and paid after South and Combs have received their distributive shares. A lien will be declared upon the shares of stock of Powell, Doyle and DeGraw for the payment of the funds due by Powell to the corporation, and the distributive shares of South and Combs will be first paid out of the proceeds of the collection of said funds.