Stewart v. King

166 P. 55 | Or. | 1917

Me. Justice Burnett

delivered the opinion of the court.

According to recitals of “Exhibit A” the defendant and Underwood had what is known in Spanish and Mexican mining law as “denouncements” of certain mineral lands. In the sense in which it is used in the instant case the term is defined by the Standard Dictionary as

“(1) To report a mine to the authorities as unoccupied or abandoned; hence, to claim the right to work a mine. (2) To report the discovery of and preempt ; claim, as a new mine.”

1. It thus appears that the defendant and Underwood claimed some initial rights in the property in question. Taken by its four corners “Exhibit A” amounts to a preliminary subscription to the stock of a corporation to be organized as a holding company for the purpose of exploiting the property. The so-called plea in abatement shows that the money was not only paid, but that by agreement of those paying it they formed the corporation and applied the money subscribed to fully paying up their shares of stock which were issued to them, and they still own and hold them.

2. Under these circumstances the money paid for the shares became funds of the corporation in the hands of the defendant as one of its promoters. As stated in Wills v. Nehalem Coal Co., 52 Or. 70, 77 (96 Pac. 528), in treating of the relationship between the promoter and a corporation:

“Whenever the breach of trust consists in a wrongful dealing of any kind, or manner, with corporate property or with corporate franchise, the corporation itself is primarily interested and must institute and maintain any equitable suit to redress the wrong, while, on the other hand, whenever the acts of the directors are of such a nature that they directly and primarily affect the interests of stockholders in their shares of stock, by diminishing its value, or otherwise impairing their proprietary rights in it, then the stockholders are directly injured and are primarily interested. Money or property received by a corporation in payment of stock subscribed and money due for stock subscribed is the property of the corporation, and constitutes its assets, and therefore any act of the directors unlawfully disposing of or dealing with such property is primarily an injury to the rights of the corporation.”

The doctrine of that ease is to the effect that in the first instance the corporation itself must sue to recover its money in whatever adverse custody it may be, and that in the absence of an actual or virtual refusal of the officers of the concern to act no such litigation will lie at the behest of the stockholder. There is no showing here that the corporation itself cannot or will not act, or that its officers prevented or refused action to recover the money subscribed for its stock. According to the first plea in abatement the plaintiff put his money into the scheme pursuant to his subscription and the organization of the concern. Under the circumstances disclosed by the first plea the plaintiff must work out his remedy through the agency of his own creature, the corporation. He got what he subscribed for, the paid-up shares in the business. It is for the organization thus created to effect the collection of its funds and the acquisition of title to the property. In the absence of any showing that it has been remiss in its duty, or that its controlling officers refuse to act, there is no cause of suit or action by the plaintiff against the-defendant directly.

3. As to the second plea in abatement claiming that Underwood is a necessary party defendant, it is sufficient to say that it does not appear that he received, any of the money which the plaintiff seeks to recover; and the mere fact that he has an interest in the embryo title to the lands does not affect the cause of action for the money said to be in the hands of the present defendant.

As to the third plea, it is disclosed that the plaintiff and his assignor refused to execute the trust agreement or to accept the provisions of the deed of trust. This is tantamount to a statement that there is no agreement in writing covering the subject. The matter is governed by Section 804, L. O. L., reading thus:

“No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writing, subscribed by the party creating, transferring, or declaring the same, or by his lawful agent, under written authority, and executed with such formalities as are required by law. ’ ’

4. The plea is a virtual confession that the defendant has alleged something at law which he cannot prove under the statute, on account of which the demurrer to that plea should be sustained.

5. Last of all the plea to the effect that the defendant and Underwood have been diligent in their endeavors to acquire title, but have not yet been able to effect their purpose, is not controlling in the premises. There is nothing stated in that plea about any time within which they should acquire title, and mere diligence will not affect the case. The demurrer was properly sustained to all the pleas except the first. That one constitutes a good defense to the action and is not amenable to tbe plaintiff’s attack upon it. Tbe judgment will therefore be reversed and the cause remanded for further proceedings.

Reversed and Remanded.

Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.