45 Neb. 220 | Neb. | 1895
This action was brought in the district court of Douglas county by appellant against the appellees for an injunction restraining the defendants from interfering with the business of L. W. Tulleys, both as an individual and as trustee. It was likewise sought to prevent defendant’s use of the name of L. W. Tulleys and of the name of Burn-ham, Tulleys & Co. The defendants Keller and Weldon were joined with the Anglo-American Mortgage & Trust Company simply because one, as its attorney at law, and the other, as its manager, was acting in its behalf in the matters of which complaint was made. By its answer, in the nature of a cross-petition, the Anglo-American Mortgage & Trust Company prayed that plaintiff L. W. Tulleys might be enjoined from advertising and doing business as “ successor to L. W. Tulleys, trustee,” and from interference with the right of such defendant to the use of the designation “L. W. Tulleys, trustee,” and that plaintiff
For some time prior to June 1, 1888, the firm of Burnham, Tulleys & Co., of which firm plaintiff was a member, was engaged in loan business, taking only real estate security. Its principal office was at Council Bluffs, Iowa,
“A. C. Burnham. L. W. Tulleys. J. N. Brown.
“Office of Burnham, Tulleys & Co.,
“Council Bluffs, Iowa, April 2, 1888.
“Alfred Walker & Co., Farm Loans and Real Estate, 85 Orange St., New Haven, Conn.
“Realizing the advantage of permanence and perpetuity in a business conducted under a corporate form, the American Mortgage & Trust Co. has been organized under the laws of the state of Iowa, to succeed the old and well known firm of Burnham, Tulleys & Co., which has been placing western farm mortgage loans for more than twenty-five years, and has now many millions upon its books. The proposed capital is $500,000, a large part of which has been taken by ourselves. If it were practicable we should take it all, as from our past experience in the business we feel sure it will be a profitable investment. We offer a limited amount of stock to our friends at par and fifty cents per share. Under our articles of incorporation and the laws of this state the stock is full paid and non-assessable. The company will be under the management of the members of said firm, and will adhere to the same conservative methods which have characterized their past record. It needs no argument to demonstrate the value of our plant or that the stock will pay handsome*225 dividends. The new form will increase our facilities, both east and west, for a. more extended business, and with a larger business will come increased profits. As the amount we have to dispose of is limited, we offer it to all our friends and customers, and subscriptions will be accepted in the order of the priority of their receipt. Subscriptions should be accompanied by twenty-five per cent of the amount subscribed. The balance will be called in between now and June first, as the directors may elect. As soon as the amount to be sold is taken wo reserve the right to reject subscriptions in excess.”
Almost immediately after the incorporation of the American Mortgage & Trust Company it was found advisable to adopt an additional distinctive designation, and the result was the incorporation of the Anglo-American Mortgage & Trust Company. Neither party questions that this change was simply for the purpose indicated and all concede the substantial identity of these corporations. Erom the deposition of L. W. Tulleys we learn that up to June 1, 1888, or thereabouts, when the firm of Burnham, Tulleys & Co. was succeeded in business by the corporation last above named, the capital stock of said firm was owned by A. C. Burnham. It is not very clear just what is meant by this statement, but we assume that Burnham alone had advanced the funds necessary for carrying on the business of said firm. For whatever this interest may have been, it was arranged between Mr. Burnham and his partners, Tulleys, Brown, and McDowell, that they should give to him their notes to the amount in the aggregate of $100,000. There had been earned by the firm of Burn-ham, Tulleys & Co. about $140,000, which was evidenced by commission mortgages, book accounts, taxes advanced, and foreclosure expenditures made, etc. Of this amount $40,000 in par value was the distributive share of A. C. Burnham. When he took the notes of his partners in exchange for the stock of Burnham, Tulleys & Co. they as
After the organization of the Anglo-American Mortgage & Trust Company its management was entrusted to Tulleys, Brown, and McDowell, as its officers. Indeed, in view of the amount of stock held by them, this could not have been otherwise intended. On December 7, 1888, J. Y-McDowell, secretary of this mortgage and trust company,, wrote to its vice president asking his advice as to making-a dividend of three and one-half per cent on its capital-stock. With this letter a statement of the condition of theeorporation was submitted, in which there was mentioned not a single cash item, unless the term “interest, $1,-120.39,” amounted to such mention. The affairs of the corporation under the management of L. W. Tulleys, president, J. Y. McDowell, secretary, E. H. Walters, treasurer, and J. N. Brown, vice president (the latter residing-in New York), grew worse and worse. It is not shpwn how the change of the directory and the managing officers-of this corporation was brought about, but it had become-practically an assured fact in November, 1891. The affairs-of the mortgage and trust company were then in such a condition that the stock which had actually beeu paid for in-cash at par was scaled down fifty per cent. Messrs. Tulleys, Brown, and McDowell at the same time, and as part of' the same transaction, gave up the stock which had been is
It is obvious from a.n examination of the petition that no relief was sought in respect to such indorsements of the name of “ L. W. Tulleys, trustee,” as had already been made; indeed, this would be out of the question, for Mr. Tulleys does not claim that there had been misappropriated funds owned by him. The injunction sought was in effect to restrain this mortgage and trust company from transacting its own business. This officer, who has been recreant to his duties and who has sought to misappropriate that good-will of a corporation, for which in his official capacity he had formerly been an instrumentality in procuring to be paid the sum of one hundred thousand dollars,
Affirmed.