72 W. Va. 353 | W. Va. | 1913
The bill in this cause was dismissed by the circuit court, upon defendant’s demurrer thereto. Plaintiff appeals. His right to-relief is based upon a contract between him and Leftwi-ch (who is not a party and apparently not interested) and the Buffalo Collieries Company, dated August 3, 1903. It is unnecessary to quote more than two clauses of the contract, the first and the thirteenth; because they sufficiently express the true intent, meaning and purpose thereof, so far as necessary to the proper determination of plaintiff’s right to the relief sought.
"First. That, in consideration of the terms, conditions and
"Thirteenth. It is further agreed, stipulated and understood by and between the parties hereto that the lessors, Everett Left-wich and B. N. Taylor, shall have and do hereby retain and reserve unto themselves, their heirs or assigns a one-tenth interest in and to all the rights, privileges and property interest in or pertaining to the property or lease herein demised, contracted and described, which interest shall be held in the nature, shape and condition of paid-up and non-assessable stock in the lessee’s company, which stock shall be evidenced by certificate properly issued, executed and signed by the proper officers of said company, one-half of the said ten per cent of the stock of said company to be issued to each of the lessors above named or his personal and legal representatives separately and in such denomination as he may direct; but in case no such direction be given then the proper officers of said company shall issue to each of the lessors above named five per cent of each and every issue of stock which may now or hereafter be made, and evidence the same by one certificate for each lessor or his representatives as above, covering his said five per cent of said stock issued, whether preferred, common or otherwise, and whenever or under whatever circumstances said company, its successors or assigns may issue any stock. And whenever said company, its successors or assigns may issue any stock of whatever kind, or for whatever purpose, ten per cent of such stock shall be issued to said lessors as above described, and the said ten per cent shall be paid up and non-assessable stock, without cost to or charge upon the said lessors above named or their representatives; and the holders of the non-assessable stock herein provided for shall be entitled to their pro.rata dividends as are other stockholders.”
The gravamen of the complaint alleged by the bill is that from time to time thereafter, and without plaintiff’s knowledge until within a few months before the institution of the suit, defendant obtained from the state, by the regular method, authority to increase its capital stock to a maximum of three hundred thousand dollars, and that, pursuant thereto, it did increase the same from fifty thousand dollars to or near the authorized maximum limit, five per cent of which, though demanded by him, it has failed and refused to issue to.him, which he claims under the provisions of the thirteenth clause of the contract. As incident to the rights thus asserted, plaintiff, by the bill, further complains of defendant’s denial of the privileges legally due him as one of its stockholders. He admits that defendant has successfully conducted its corporate business, has acquired and is operating mining leases on lands other than those leased to it by himself and Leftwich, "and has lately acquired and is now the owner of large holdings of valuable real estate purchased from the profits made in its said business of mining and shipping coal * * *, and has made large dividends and profits,” in which it refuses him any participation Under the contract as he interprets it. The relief sought is a decree requiring defendant to issue to him five per cent in value of the shares issued by it in excess of the first issue of one thousand shares, and to accord to him all the rights and privileges of a stockholder therein, and for discovery and an accounting.
The provisions of clause thirteen are, it is true, comprehensive and explicit, and, on a cursory examination, seem to sustain plaintiff’s claim to relief. But, when carefully examined, and tested by the canons of construction applicable alike to all contracts whatever their purpose or character, the proper conclusion accords with the rulings of the circuit court on the demurrer to the
Plaintiffs contention is that, by clause thirteen, he is entitled to, and has the equitable right to compel defendant to issue to him, a definite percentage of its capital stock whenever or for whatever purpose or character issued, whether issued for operations on the premises leased by him and Leftwieh or by others with whom or in whose lands or the coal thereunder the plaintiff has not and possibly may never have any interest or claim — a right without limit in duration, except perhaps by the dissolution or insolvency of the corporation. Of course, courts can not, nor do they attempt either to make contracts for parties competent to transact business for themselves, or relieve them from self-imposed imprudent agreements, except where fraud is charged and clearly established. They seek only, by fixed and definite rules, to ascertain and declare, not whether the terms of the contract are prudent or imprudent, but what the actual terms of their agreement arc, and, when thus determined, to enforce them according thereto.
With this purpose in view, it is, as heretofore stated, necessary to construe clause thirteen in connection with the first clause;
Modified md Affirmed.