17 Haw. 41 | Haw. | 1905
OPINION OP THE COURT BY
This is an appeal from a decree dismissing a bill for an accounting. 'The suit is instituted by the minority stockholders of the American Dry Goods Association, Ltd., a domestic corporation, against that corporation and L. B. Kerr & Co., Ltd., another and much larger domestic corporation, and L. B. Kerr. The bill is very lengthy, covering some thirty typewritten pages, and contains much that is immaterial. The suit is brought upon the theory that the respondents L. B. Kerr & Co., Ltd., and L. B. Kerr “combined, confederated and conspired together” to acquire the assets, business and good will of the
After the complainants rested the respondents, without submitting their case, but expressly reserving the right to introduce evidence, moved that the bill be dismissed on the ground that its allegations were not proved, which motion was granted. The proper practice in equity is, that the respondent should be required to rest before his motion to dismiss the bill is entertained. See Territory v. McCandless, 16 Haw. 128. " But, in view of the conclusion reached, the decree cannot be reversed for that reason.
It appears from the evidence that the American Dry Goods Association, Ltd., was incorporated sometime in June, 1900, with a capital stock of $9,100, to carry on a general dry goods business. With this $9,100 it acquired the stock of merchandise and business of the Hawaiian Dry Goods Association, formerly conducted on Eort street, between Hotel and King streets, and continued the business at the same place. The incorporators, desiring to restrict the holders of stock to Portuguese, refused to let Mr. Kerr or any one not a Portuguese into the new concern. After this new corporation had been doing business for about a month, Kerr & Co., Ltd., acting through Mr. Kerr, acquired forty-seven shares of the capital stock of the American Dry Goods Association, Ltd., which' was a little over a majority, thirty of the shares being paid for at par and seventeen at ten per cent, above par, five additional shares being purchased later by Kerr & Co., Ltd. Erom that time, that is, July, 1900, until sometime in the early part of 1903, the corporation was run by L. B. Kerr & Co., Ltd. A new board of directors was elected, consisting entirely of employees of L. B. Kerr & Co.,
But the evidence does not show or tend to show the alleged conspiracy to wreck the American Dry Goods Association, Ltd., thereby eliminating it as a competitor, which constitutes the ground upon which complainants have sought relief. The evidence, if anything, tends to show the contrary. Kerr & Co., Ltd., lost more in doing what it did than it would have if it had originally purchased, as it had an opportunity to do, all of the shares of the American Dry Goods Association, Ltd., and immediately closed up the latter concern. There was no evidence of any undue advantage or any unconscionable bargains between the American Dry Goods Association, Ltd., on the one hand, and Kerr & Co., Ltd., on the other hand, after the latter concern had acquired control of the former. Quite a large amount of merchandise was sold by Kerr & Co., Ltd., to the American Dry Goods Association, Ltd., during the time complained of, but it does not appear that there was anything unfair in this.
It is also objected by complainants that Kerr & Co., Ltd., did not have the right, legally, to acquire shares of stock in
After a careful consideration of all the evidence, we are of the opinion that the decree of the circuit judge must be sustained.
The decree appealed from is affirmed.