Walsh v. Goulden

130 Mich. 531 | Mich. | 1902

Grant, J.

(after stating the facts). The learned counsel for complainant state the theory of their case as follows:

1. Defendants secured complainant’s stock, and all the other stock, by fraud in misrepresenting material facts, and in concealing the secret agreement.

3. Defendants acted as trustees of the complainant and other stockholders, i. e., a fiduciary relation existed between them; and, when such relation exists, the trustee cannot retain a secret profit from the execution of the trust.

3. Defendants, being directors, could not profit by the sale, when such sale was brought about or influenced by their official action.

4. A trustee or agent cannot make a secret profit for himself as a result of his agency or trusteeship.

5. The agent cannot be a purchaser.

The principles of law stated in the above propositions are not disputed. Although the sale of the stock was a very advantageous one for the stockholders, yet, if the defendants were che mere conduits through which these stockholders were to transfer their stock to Lynn and Baxter, and there had existed a secret agreement between them and defendants that the former were to pay the latter a consideration for procuring the sale of the stock, they would undoubtedly not be permitted to profit by such a transaction. The question, therefore, has become one entirely of fact; and the two questions are, Did the defendants make false representations as to material facts ? and, Was there a secret agreement by which they were to profit at the expense of other stockholders ? We find no evidence whatever of any misrepresentation of facts, material or immaterial. The stockholders were fully informed as to the situation. They knew the condition of their own company, had met and voted to dispose of the property at $2 for $1 for their stock, and had, by the agreement of November 18th, either made Mr. Beal their agent to carry out the sale, or had modified their resolution of sale by agreeing to sell their stock to him at the same rate. The defendants possessed no information which complainant and the other stockholders did not also possess. If Lynn and Baxter had failed to take the property, it is difficult to see what legal objection the stockholders could make to transferring their stock to Mr. Beal upon payment under their contract with him, regardless of the parties to whom he was to convey. All prior oral and written negotiations and agreements were merged in this written contract. It did not mention any other vendee than Mr. Beal. Had the complainant desired to limit the right to sell to Lynn and Baxter, and to make Beal his agent to effect the transfer, appropriate language should have been used for that purpose. What possible difference did it make to complainant to whom Mr. Beal sold, provided he got the price agreed upon ? Assuming, however, that the defendants stood in the position of agents to carry out the wishes of the stockholders^ the question remains, Was there an agreement, at the time the sale was agreed upon, by which Lynn and Baxter, or the corporation to be formed by them, were to give the defendants bonds and stock in the new corporation ? There is no testimony whatever to even indicate that such an arrangement existed or was contemplated, either at the time of the execution of the contract to sell or the extension of that contract. There is no testimony that any such arrangement was even thought of, much less spoken of, until after the arrangements were made for the transfer of the stock, and about 10 days before it was actually transferred to the new corporation. He who charges fraud is bound to prove it, and that by substantial evidence. In order to sustain a decree against defendants, it must be found that they deliberately testified falsely, or else that the transaction is a fraud in law, no matter when the stock and bonds were given to them, or what the consideration, if any, was. Their testimony stands uncontradicted by any witness or any circumstances. The circumstances under which the bonds and stock were given to defendants are thus stated by Mr. Beal:

“Mr. Lynn, within a week or 10 days of the final closing of the sale, met me, and said :

“ ‘We want you to stay in the company, sure, and I have got these bonds to sell. I want you to sell some of the bonds in Ann Arbor for us; and then I have got some other projects, too, — other gas companies, — I want you to be interested with me. You can control capital of your own and others in Ann Arbor, and I want to go in with you.. I want to have you go in with this company.’

“And I have heard Mr. Goulden and Mr. Bennett, several times (and had agreed with them, too), express their determination when they sold the stock to get right out. They didn’t want anything more to do with it. We saw there was a big storm coming here when the price of gas was_raised, and a fight before the council, probably, for a charter, so that they just wanted to get out. They had expressed themselves that way.

“ Q. In your presence ?

“A. In my presence several times, and I had agreed with them.

‘ ‘ Q. Agreed with whom ?

“A. With Mr. Bennett and Mr. Goulden.

“ Q. That you would get out ?

“A. Yes; that we would close right out. And then Mr. Lynn came to me and said that Goulden and Bennett would stay in if I would; if I would stay in, why, they would give us five thousand of the bonds apiece. They had, of course, a lot more bonds — Mr. Lynn — than was actually paid for the plants, and those bonds were theirs; and they were very anxious to sell the bonds, and were selling them at a discount, at times, and also with a stock bonus of 25 per cent. Anybody that would take $1,000 of bonds would have $250 of stock.

“ Q. The stock bonus went with the bonds ?

“A. Yes; that went with the bonds. And Mr. Lynn said:

“ ‘ Mr. Goulden and Mr. Bennett will stay in if you do, and I want to have you. We need you three. You understand the business up there, and have a knowledge of the situation; and, in this fight that is going to come on us, we want your hearty support and help and assistance, and, if you will do that, we will give you the bonds and the accompanying stock.’

“ Q. He would give you how much of the bonds ?

“A. Five thousand of bonds and 25 per cent, of stock. * * *

“ Q. After having this conversation with Lynn, did you then see Mr. Bennett and Mr. Goulden, to see whether or not they had agreed to accept this offer if you did ? Did you talk that over with them ?

“A. Yes.

“ Q. Before you finally consummated it ?

“A. Yes.

“ Q. Now, let me see if I understand you. The contract was finally closed that day ?

“A. Yes.

“ Q. Did that five thousand that was paid you, or paid to either of these men, have anything to do with the price of the plant, according to the actual terms of your agreement ?

“A. Nothing whatever. That had been settled long before.”

Mr. Bennett’s version of the transaction is the same. This is all the evidence on the subject.

Under’ this record, complainant received every cent he contracted for. He was not deceived. The terms of the sale had been agreed upon, and a contract made, not only between the complainant, the other stockholders, and Mr. Beal, but also between Mr. Beal and Lynn and Baxter, by which he agreed to transfer the stock to them upon the payment of §80,000. When about to execute the papers to carry out the contract between Beal and Lynn and Baxter, they wanted defendants to remain as stockholders in the new corporation, and defendants Bennett and Goulden as directors. They at first strenuously objected, and for reasons which to them seemed good. They were finally persuaded to enter the new company, — all as stockholders, and the two as directors, — upon receipt of $5,00.0 of bonds, and the bonus stock which accompanied the same. There was nothing bad, in morals or in law, about this transaction. Lynn and Baxter owned the stock and bonds, and had the legal right to give it away or to sell it upon any consideration they chose. The defendants, had the moral as well as legal right to purchase the bonds and to become stockholders upon any terms they chose to make with those who had the stock and bonds to sell. Their full duty to the stockholders of the old company was performed. We agree with the circuit judge that there is nothing in the transaction which indicates fraud, or reflects upon the honor and integrity of the defendants.

Counsel’s statement that an agent cannot be a purchaser states the rule too broadly. An agent may purchase from his principal, so long as he acts in good faith, and his principal is informed of the situation. If the defendants or Mr. Beal had at one time been the agents for complainant to sell his stock, and afterwards complainant made a contract, with full knowledge of all the facts, to sell his stock to Mr. Beal, that contract would be binding. Directors, of course, stand in a fiduciary relation to the corporation itself. They do not stand in that relation, however, when dealing with other stockholders for the purchase or sale of stock. In the purchase and sale of stock between stockholders there must be some actual misrepresentation in order to constitute fraud. Mere silence is not sufficient. The books of the corporation are open to all stockholders alike, and' each may inform himself of the condition of the company. 1 Cook, Corp. § 320; Rose v. Barclay, 191 Pa. St. 594 (43 Atl. 385, 45 L. R. A. 392); Carpenter v. Danforth, 52 Barb. 581; Grant v. Attrill, 11 Fed. 469. Other cases of the like import are cited in the defendants’ brief.¹

Decree is affirmed, with costs.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.

1 Viz.: Tippecanoe Co. Com’rs v. Reynolds, 44 Ind. 509 (15 Am. Rep. 245); Deaderick v. Wilson, 8 Baxt. 108; Alexander v. Rollins, 84 Mo. 657; Crowell v. Jackson, 53 N. J. Law, 656 (23 Atl. 426); Gillett v. Bowen, 23 Fed. 625; Smith v. Hurd, 12 Metc. (Mass.) 371 (46 Am. Dec. 690); Spering’s Appeal, 71 Pa. St. 11 (10 Am. Rep. 684); Allen v. Curtis, 26 Conn. 456; Bloom v. Loan Co., 152 N. Y. 114 (46 N. E. 166).