296 Mass. 13 | Mass. | 1936
This is a bill in equity by the holder of three hundred and eighty shares of stock in Whitney & Company, Incorporated, a corporation, against the corporation and Fred A. Whitney, the holder of six hundred and seventeen shares. A demurrer was sustained on the ground of multifariousness, the plaintiff declined to. amend, a final decree was entered dismissing the bill with costs, and the plaintiff appealed.
The bill alleges in substance that in 1926 the corporation bought from the plaintiff and the individual defendant certain assets of a partnership in which they were equal partners, for the entire capital stock of the corporation, consisting of nine hundred ninety-eight shares; that the plaintiff was ill, and compelled to entrust to the individual defendant the organization of the corporation, and the transfer to it of the assets of the partnership; that the individual defendant issued three hundred and eighty shares to the plaintiff and a like amount to himself, and without legal consideration issued two hundred and thirty-seven additional shares to himself; that the individual defendant as controlling stockholder without right has used the credit, funds and property of the corporation for his own private purposes, and to cover his misappropriation has caused to be declared a dividend of forty per cent which has not been earned. The bill prays for an accounting of the funds and property of the corporation which have been used for private purposes, for their restoration to the corporation, and for the cancellation of two hundred and thirty-seven shares of stock held by the individual defendant.
No specific ground is set forth for the general allegation that the issuance of the two hundred and thirty-seven shares was without legal consideration and a wrong to the corporation. On the contrary, the basic facts alleged show that the entire issue of stock was in consideration of the transfer of certain assets of the partnership, and lawful. Any wrong done by the individual defendant in taking and keeping the two hundred and thirty-seven shares was a wrong to the plaintiff and not to the corporation. On the other hand, the misconduct of the individual defendant
Decree affirmed with costs.