98 Ga. 329 | Ga. | 1896
The Steele Lumber Company, a corporation, on the 6th day of May, 1891, entered into an agreement, under the terms of which it undertook, upon the conditions therein expressed, to convey to the Laurens Lumber Company, another corporation, a certain saw-mill and its equipment, together with other personal property appurtenant thereto, all of which is the subject-matter of the present litigation. The agreement to sell was as follows:
“This agreement entered into this the 6th day of May, 1891, between A. B. Steele Lumber Company, a corporation, of the one part, and Laurens Lumber Company, a corporation, of the other part, witnesseth, that the party of the first part has agreed to sell to party of second part all its property, both real and personal, except the lumber cut and stacked at Youngstown Car Works, the iron safe, round top desk, and office chair in its Atlanta office, such lots as it may have bought since the 19th of March last, and all notes, accounts or other credits due it on the first of April last, for the sum of one hundred and fifty thousand dollars, payable as follows: twelve thousand dollar’s cash, the receipt of which is acknowledged; two thousand dollars on the 30th inst., and two thousand dolars on the 30th of each succeeding month, up to and including the 30th of March, 1892; twenty-one hundred and sixty-six and 66-100 dollar’s per month for the nest twelve months; and twenty-five hundred dollars per month for the next thirty-six months, each and all of the deferred payments evidenced by notes, and bear*333 ing interest at the rate of 7 per cent, per annum from 30th of March last; and all of said notes to- become due and payable instanter in the event of default for thirty days in payment of any one of them after it shall have, become due; provided, however, that no title to said property is. to vest in the purchaser until the whole' shall have been fully paid for, title to all of said property being retained by the party of the first part until sajd indebtedness is fully paid. Party of second part covenants that it will keep insurance upon the mill in good and solvent companies, to the extent of not less than twenty-five thousand dolars, with loss, if any, payable to party of first part, and should this covenant be broken, then the whole indebtedness, all of said notes, shall become due and payable instanter. Party of second part further covenants that until said indebtedness is paid, or until released from the covenant by party of first part, John O. Anderson shall have the management of the business of said Laurens Lumber Company, and shall reside at the mill and give his personal attention to the care of the property and not suffer it to deteriorate in any particular, but nothing in this covenant contained shall affect the duties of president and secretary as to 'tire execution of notes or other obligations of the company. It not being the purpose of party of the first part to interfere with the management of the business of said Laurens Lumber Company, but simply to secure the skill of said Anderson in its management until such an amount shall have been paid on the purchase price as will make it safe. Party of second part further covenants that it will pay the taxes assessed against party of first part for the year 1891, and that it will assume, complete and perform any and all unfinished or unexpired contracts of said A. B. Steele Lumber Company, including any and all rental that may have accrued to E. T., Y. & G. Ry. Co. for old iron since first of April last. In the event said J. C. Anderson shall fail to reside at said mill and give his personal attention and skill to the business and to the protection of the property as above covenanted, immediately upon such breach of covenant each and every of said notes shall become due and payable instanter, and party of first part shall have the right to enforce any remedy allowed by law for the collection of past due obligations or the protection of vendor of property. It is understood*334 and agreed that party of second part shall have the right to. discount any of its said notes at any time that not less than four are taken up at one payment, by adding interest up to the time of payment and deducting from the amount twelve per cent, of the principal. It is further understood and agreed that should the saw-mill property be destroyed or so greatly damaged by fire as to stop operation, then and in that event should any note mature during such stoppage, its payment shall be suspended until by due diligence operation can be resumed, provided such suspension shall not exceed four months, and party of first part is to allow the proceeds of insurance policies as far as may be necessary to be used in repairing the loss sustained by such fire, applying any excess toward the payment of such of said notes as may then be unpaid. It is further- understood and agreed that any property bought by the party of the second part to supply the place of any used or consumed, shall be in lieu of that so used or consumed, and title thereto shall vest in party of first part until said indebtedness is paid, and when said property is fully paid for, title shall then vest in the Laurens Lumber Company. In witness whereof, the parties hereto, by their duly authorized officers, have executed this agreement the day and year first aforesaid.”
The agreement above quoted was duly recorded, and thereunder the Laurens Lumber Company took possession of the property covered thereby, and in part execution of the agreement paid a part of the purchase money amounting to fifty thousand dollars or upward.
On the 15th day of October, 1892, another agreement was entered into by and between the Laurens Lumber Company, acting by and through its president, E. S. Nace, and the Steele Lumber Company, by the terms of which the property in question was restored to the possession of the Steele Lumber Company. The agreement under which this last act was accomplished was as follows, to wit:
“Whereas, on the 6th day of May, 1891, the Steele Lumber Company sold to. the Laurens Lumber Company certain property in the county of Dodge, retaining title thereto, and provided that upon certain conditions time payments*335 extended should become due, which sale is evidenced by a written contract recorded in the clerk’s office of the county of Dodge in book “D” on the 18th day of May, 1891; whereas, said Laurens Lumber Company has failed to. pay said indebtedness as provided in said agreement, has failed to keep the property insured as provided in said agreement, and has otherwise broken its covenant as in said agreement contained, -whereby said entire indebtedness has now become due; and whereas, said Laurens Lumber Company has cut the timber from a great portion of said property, and is now unable to. pay said indebtedness and desires to rescind said agreement and restore to said A. B. Steele Lumber Company the property obtained from it as aforesaid and such other property as it has purchased to supply the place of any of the property of said A. B. Steel© Lumber Company used by said Laurens Lumber Company as provided in said agreement; and whereas, said A. B. Steele Lumber Company is willing to take the property back and cancel said indebtedness; and whereas, it would involve both parties to said agreement in needless expense to remit said Steele Lumber Company to an action in the court, which the property will not bear, all of said property not being sufficient to more than pay, even if it will fully pay said Steele Lumber Company the indebtedness due it:
“Now, in consideration of the premises, said parties mutually agree to rescind said contract, and said Laurens Lumber Company relinquishes all claim in, to or upon said property or any of it, and transfers and delivers the same to the said Steele Lumber Company; and said Steele Lumber Company agrees to said rescission of the contract, and accepts said property in discharge of the indebtedness due to it from the Laurens Lumber Company.
“In witness whereof, said Steele Lumber Company and said Laurens Lumber Company have executed this instrument in duplicate, this 15th of October, 1892.”
Immediately upon the restoration of the property to the possession of the Steele Lumber Company, a petition was filed in the name of the Laurens Lumber Company and in the name of two other persons who- alleged themselves to be stockholders in that company — one of them alleging that he was also a creditor of that company. Process was
Upon these allegations of the petition the court appointed a temporary receiver to take possession of all the property. Thereafter the defendant, the Steele Lumber Company, answered, denying generally all improper conduct in the transactions alleged against it in the plaintiffs’ petition,
After the filing of the answers of the defendants, but before the hearing upon the application for a receiver was had, a number of persons, some- of them claiming to be laborers and others claiming to be otherwise entitled to liens-upon the property of the Laurens- Lumber Company, filed petitions in this cause entitled, in which they alleged that the Laurens Lumber Company was indebted to them in certain specified sums, for labor and supplies, which, if proven to have been done and furnished, would have authorized in a proper case a decree in their favor -against the LaurensLumber Company. The petitions alleged that as creditors of the Laurens Lumber Company, they were interested in the result of this cause, and as intervenors they asked that they be made parties, with the right to establish and enforce-their rights by appropriate decree, and to plead as might be necessai'y to that end. Some of them alleged that their liens had been foreclosed and levied by the sheriff of Dodge county upon the property seized by the court in this case before the- appointment of the temporary receiver. They adopted the averment of the Laurens Lumber Company that the attempted transfer of this property by its president, to the Steele Lumber Company was fraudulent and void, without adequate consideration, and the result of collusion between Nace and the Steele Lumber Company, made for the purpose of defrauding these intervenors and other credi
These intervening petitions were allowed, and the parties named were made parties plaintiff in the case. Upon the coming in of the answer, the court appointed a permanent receiver, and by the order of appointment, directed that the permanent receiver should talce possession of all the property in the hands of the temporary receiver, except that originally sold by the A. B. Steele Lumber Company to the Laurens Lumber Company, and such property as was bought by the Laurens Lumber Company to supply the
After this had been done, the plaintiffs amended their petition, and, in substance, alleged that the Laurens Lumber Company had paid, on account of the purchase price of the property, to the Steele Lumber Company the sum of sixty thousand dollars, besides interest, under the contract of IVIay 6th, 1891, of which property the Steele Lumber Company has repossessed itself as charged in the petition; and a judgment was prayed against the Steele Lumber Company for such sums.
Thereafter the Steele Lumber Company amended its answer and alleged, that for and on account of the purchase price of the property in question and because of other matters connected therewith and growing out of the same transaction, the Laurens Lumber Company was indebted to it in the sum of one hundred and five thousand dollars or other large sum, and, while it insisted that under the contract of October 15th, 1892, it was entitled to retain the property delivered to it in satisfaction of its. said demand, that if the court, upon the final hearing, should be of the opinion that the transfer, for want of authority in the president to make it or for any other cause, was invalid, it would render a decree in its favor for the unpaid purchase money, giving it a lien thereon superior in point of dignity to that of any other creditor of the Laurens Lumber Company.
The master found that the taking possession of the property by the Steele Lumber Company was in good faith. The chancellor found that it was wrongful and tortious,
1. The question of practice dealt with in the first headnote is sufficiently treated in Carey v. Giles, 10 Ga. 1; McNulty et al. v. Pruden, 62 Ga. 138, and the cases there cited.
2-5. To a proper adjudication of the .questions which arise in this case, it is essential first that we clearly comprehend the issues as they are defined by the pleadings filed on the part of the respective parties. If these issues be clearly understood and the miles of law applicable be properly administered, the court is bound to' reach a correct result; but if the issues be misapprehended, and the cause tried upon theories inconsistent with those outlined in the. pleadings, a correct result is necessarily unattainable. We will proceed therefore to ascertain from the pleadings what are the mutual contentions between the parties. The case was tried in the court below upon the supposition that it was a creditors’ bill, and in its trial all of those remedial
It will be seen by an examination of the petition that the only parties plaintiff at the time it was originally filed, were the Laurens Lumber Company itself, and two of the stockholders of that company, who sued in their capacity as stockholders, one of such stockholders alleging that he was a creditor of the Laurens Lumber Company. Th© expressed purpose of the bill was to marshal the assets.of the Laurens Lumber Company. Another declared purpose was to set aside an alleged fraudulent conveyance made by the president of the Laurens Lumber Company to the Steele Lumber Company, ilnder and by virtue of which the property was transferred from the possession of the Laurens Lumber Company to that of the Steele Lumber Company. Another professed object of the suit was to recover damages from the Steele Lumber Company for this alleged illegal conversion of the property of the Laurens Lumber Company.
Could this suit be' maintained as a creditors’ bill by those parties who were plaintiffs in the original record? It will not be pretended that the petition in the present case' can be upheld as a proceeding under the provisions of our code relating to receivers for the assets of insolvent traders (see Code, §3149 (a) et seq.), first, because the Laurens Lumber Company could not maintain such a proceeding against
It cannot be treated as a bill to wind up the affairs of this corporation, in which all persons at interest are authorized to intervene: (1) Because to such a proceeding,, by whomsoever it may be filed, the corporation itself must be inade a party defendant. Thompson’s Commentaries on the Law of Corporations, vol. 5, §6568; vol. 3, §3509; Coleman v. White, 80 American Decisions, 797; Ferris v. Strong, Edwards Ch. Repts. vol. 3, p. 127; Verplanck v. Mercantile Ins. Co. of N. Y., 2 Paige C. R. 438. (2) The petition could not be 2naintained as such a proceeding filed upon the part of the individual stockholder, because he alleges no action or threatened action of the directors which is beyond the authority conferred by the charter or the law under
It will be seen, then, that upon authority of these decisions, the Laurens Lumber Company, the debtor corporation, could not maintain a bill to marshal its own assets.
We will not pause to inquire whether the court, upon the state of facts presented in this petition, was authorized either to grant an injunction or to appoint a receiver. There being no objection made to its action with respect to these matters, we will treat the petition, as we will hereafter consider it, as sufficient to sustain the appointment of a receiver. The petition in this case was filed by the Laurens Lumber Company as one of the parties plaintiff. It alleged a fraudulent conversion by the Steele Lumber Company of a large proportion of its effects. It alleged that the agreement under and by which the Steele Lumber Company obtained possession of such effects was fraudulent. It claimed damages against the Steele Lumber Company as for a conversion of its property, and prayed for general relief. Under this prayer, a restoration of the property might have been made to the Laurens Lumber Company. The agreement under which the Steele Lumber Company held it could have been declared void. Damages could have been awarded for the conversion, and the suit, while not maintainable as a creditors’ bill, might still have been retained for the purposes above indicated. While the two persons who appear in the capacity of stockholders were not proper parties to this suit, inasmuch as the Laurens Lumber Company, under the view above taken, was a proper plaintiff, the two former may be considered as stricken, and the cause proceed for the adjustment of the equities existing between the Laurens Lumber Company and the Steele Lumber Company.
6. This was a species of equitable action of trover and
In respect to their right to recover a judgment over against the Steele Lumber Company in the present case, the lien creditors, whose executions were enjoined under the original bill, occupy no better position than those other creditors who came in by separate petition. The only purpose for which they were brought into the original proceeding by the Laurens Lumber Company, was to enjoin them from the enforcement of their executions against the property of that company; and whether the Laurens Lumber Company could maintain such a bill or not, the mere grant of an injunction as against them did not authorize the court to retain them, and in their favor decree affirmative relief over against the Steele Lumber Company, their codefendant, between which and themselves no privity was alleged to exist.- If they are entitled to such affirmative relief, it is under the separate petition filed by them, and not by virtue of any supposed inherent right springing from their position as defendants. The general rule that where a court of equity has all the parties before it, it will proceed to administer full relief, must be understood of course with the qualification that the parties must be proper parties, with such privities existing as will in law make one answerable over as against the other. They must be before the court upon proper pleadings, and the relief sought must not
Whether or not, even though these lien creditors were admitted into this proceeding without objection, they can be retained and relief decreed to the extent of establishing their claims and liens as against the Laurens Lumber Company, it is not necessary to inquire, inasmuch as that company has not excepted to the rendition of a decree setting up and establishing as against it those claims and liens. Certainly, as against the Steele Lumber Company, they have no standing in this proceeding, except in so far as the court may be able to decree over in their favor upon the petitions pro interesse suo, for the purpose of fixing any lien established in their favor upon property in the possession of the Steele Lumber Company, which may hereafter be adjudged subject thereto as the property of the Lauréns Lumber Company.
8. Subsequently to the filing of the bond by the Steele Lumber Company, the Laurens Lumber Company amended its petition and prayed a judgment against the Steele Lumber Company for the purchase money paid by the former in the first instance., and it was upon the strength of this amendment that a judgment was ultimately rendered against the Steele Lumber Company and its sureties upon the bond above referred to, of which judgment the Steele Lumber Company now complains. The amendment in question seems to have been allowed without objection. But the question is, whether, so allowed, it can be made the basis of a decree. In determining this matter, it will be necessary to inquire what was the exact status of affairs at the time of the institution of this suit, and whether or not, in view of its action in the premises, the Laurens Lumber Company is estopped to claim a repayment of the money
We think that the transaction between Steele and Nace, the latter being the president of the Laurens Lumber Company, as disclosed by and outlined in the evidence, was a bona fide effort to compromise an existing indebtedness due from the Laurens Lumber Company to the Steele Lumber Company, the overwhelming weight of the testimony upon that point being to that effect, and there, being nothing to the contrary, save only the isolated fact that it was done without authority from the board of directors of the Laurens Lumber Company; and this, even if rendering the contract of no effect, would not of itself taint the transaction with fraud; it was, at worst, only an ineffectual effort to compromise, and could not per se subject the.Steele Lumber Company to the consequences enforced by the decree, that is to say, an entire forfeiture of its unpaid purchase money. It might amount to a tort for which damages may be recovered, but we know of no law which authorizes a court to subject it to a forfeiture of purchase money as a fixed penalty for its wrong. Against a suit for the tort and conversion, it might be still authorized to' set off the unpaid purchase money.
9, 10. In dealing with this question, however, we will, for the purposes of this discussion, assume that the Steele lumber Company, under a supposed but mistaken right of entry under its reservation of title in the agreement with the Laurens Lumber Company, in fact re-entered and took possession of this property without authority; that the agreement between its president and Nace was wholly unauthorized. In this condition of affairs, the Laurens Lumber Company would have its election of two rights. The one right would be to affirm the contract, ratify the unauthorized act of Nace, and hold the Steele Lumber Company to its agreement. Or it would have the right to repudiate in toto that agreement, and stand upon its rights measured
In the institution of the action now under consideration is to be found the evidence of an election on the part of the Laurens Lumber Company to claim the property as its own, with damages. This is the highest evidence of an election. Upon the faith of this election, it has procured the appointment of a receiver; it has procured the seizure of the property in controversy, which seizure resulted in bringing into this controversy the persons against whom, as sureties of the Steele Lumber Company, a judgment was rendered, and in all subsequent stages of the litigation thus inaugurated, it will be held to its election. It will not thereafter be allowed during the progress of the litigation to exercise a second election inconsistent with the first, and by amendment obtain a decree in its favor upon the force and strength of the second election. Having made its election of its right, the Laurens Lumber Company must abide by that. Having made its election of a forum, it is likewise bound by that.
11. The mere fact that the defendant in its answer in the nature of a cross-bill prayed a judgment against the plaintiff, the Laurens Lumber Company, for the amount of its unpaid purchase money, with interest, and, insisting upon the validity of the alleged unauthorized contract of the president of the Laurens Lumber Company, filed a
12. So that when we come to deal with the question as between the parties plaintiff and defendant to this record, that is the Laurens Lumber Company and the Steele Lumber Company, the court should give full expression to all •of the equitable rights of both the parties and frame such a decree as will accomplish this result. Having elected to sue for this property as its own property for the purpose of paying its own creditors, the Laurens Lumber Company must first account to the Steele Lumber Company for the purchase money remaining unpaid, the latter company "being held answerable for the value of all of the property of which it was permitted by the court to retain possession.
The only elements of damage laid in the original petition, for which a money decree could be rendered in this case against the Steele Lumber Company in favor of the Laurens Lumber Company, were: (1) damages which might have resulted to the latter to its business or property because •of the alleged wrongful or unlawful entry of the Steele Lumber Company; and (2) damages as for a conversion, estimated upon the value of the property of the Laurens Lumber Company which passed into the possession of the Steele Lumber Company under its re-entry. The first of
If no damages could be found or awarded for the alleged illegal re-entry, then, inasmuch as it is not claimed that the receiver did not seize in the first instance and take charge of all the property of the Laurens Lumber Company of which the Steele Lumber Company possessed itself under its re-entry, the measure of the Laurens Lumber Company’s right of recovery is the value of the property delivered by the receiver to the Steele Lumber Company, which was by it retained, and not including in this estimate the value of that property delivered by the receiver to the Steele Lumber Company in the first instance and afterwards retaken by the receiver.
As against the value of this property, the money due the Steele Lumber Company on account of the purchase money for the property in question, is found by the decree of the chancellor to be $94,642.50, with interest at seven per cent, from 30th day of March, 1891, and to this portion of the decree no exception is filed; and that finding is likewise affirmed.
If upon an accounting between these parties it should appear that the amount of the Steele Lumber Company’s claim for purchase money exceeds the value of the property received by it from the receiver, it would be entitled to a judgment for the excess against the Laurens Lumber Company. If the contrary should be true, and the value of the property received by the Stéele Lumber Company be greater than the amount of its purchase money claim, the Laurens Lumber Company would be entitled to a judgment against the Steele Lumber Company and the sureties on its bond for the difference. If the Steele Lumber Company, upon the equitable set-off, should recover a judgment, and there be assets in the hands of the receiver derived from tbe sale of the property of the Laurens Lumber Company,
Whether or not, as against tbe claims of other persons claiming liens, tbe liens thus established in favor of tbe Steele Lumber Company shall prevail, cannot of course now be decided. They will at all events be good as against tbe Laurens Lumber Company.
If it should develop that there are assets in'tbe bands of tbe receiver belonging to tbe Laurens Lumber Company upon which other creditors claim liens, in. tbe distribution of sucb assets any lien set up or established in favor of tbe Steele Lumber Company is open to contest by sucb creditors. Or if it should appear that tbe Steele Lumber Company has any property in its possession upon wbicb other creditors have or claim liens superior to its own, while not entitled to recover as against it and its sureties upon tbe bond, they may be able hereafter to recover as against tbe Steele Lumber Company. This much to indicate bow tbe accounting should be bad between tbe Laurens Lumber
When we come to deal with the decree which was in fact rendered, we encounter less difficulty. The chancellor failed to take account of the election of the plaintiffs- to sue for the property alleged to have been seized by th'e Steele Lumber Company as the property of the former, and, though having caused a seizure of this property as its own, permitted it to exercise with respect to the right of action a second election, and to recover- as the measure of its right as against the Steele Lumber Company and its sureties the purchase money which it had paid to the Steele Lumber Company. The bond given by the Steele Lumber Company and its sureties was a bond to answer a judgment in one case upon one cause of action; the decree against them was upon an entirely different cause of action, and it therefore cannot be sustained.
Affirming, therefore, the decree of the chancellor in so far as it finds that the Laurens Lumber Company was not damaged in its business or otherwise by the re-entry of the Steele Lumber Company, and that the purchase money remaining unpaid and due by the Laurens Lumber Company to the Steele Lumber Company is $94,642.50, with interest at seven per cent, from the 30th day of March, 1891; and without in anywise ruling upon the claims and liens of creditors o-f the Laurens Lumber Company as they were allowed and set up and established as between themselves and as against tbe Laurens Lumber Company, — direction is given that in all other respects the decree be vacated, the judgment of the court reversed, and the cause rereferred to the master, with instructions to state an account as between the parties, and adjust their equities in accordance with the principles herein indicated.
Judgment reversed, ivitli direction.