64 Conn. 101 | Conn. | 1894
Upon the facts appearing upon the record, it is claimed in behalf of Jedediah Wilcox, the defendant in the principal case, that the agreement between Foley and himself was a valid and proper contract which could be carried out without fraud, and contemplated none ; that therefore, when he began to solicit subscriptions to the stock of the new corporation, he had an interest in the patents; that he was in fact a partner with Foley, that in making this contract with Foley he acted wholly for himself, and stood in no fiduciary relation to the Yale Gas Stove Company, or any of its stockholders. “ There was,” says his counsel, “ no man, and no body of men, who had any hold upon him at the time he made this contract; nor any to whom he owed a duty, nor any selected, and in contemplation, to whom he might owe a duty.” The objections “ that a resale to some new corporation was contemplated; that the purchase price was to be new stock of such corporation; that but little time elapsed between the two contracts; ” are said to be “ all met and answered ” by the cases of Ladywell Mining Co. v. Brookes, L. R., 34 Ch. D., 398; and on appeal, L. R., 35 Ch. D., 400; Grover’s Case, L. R., 20 Eq. Cases, 114; New Sombrero Phosphate Co. v. Erlanger, L. R., 5 Ch. D., 73; and Erlanger v. New Sombrero Phosphate Co., L. R., 3 App. Cases, 1218.
It is further said that these cases, and also the case of Barr v. New York, Lake Erie & Western Railroad Co., 125 New York, 263, 277, and In re Cape Breton Co., L. R, 29 Ch. D., 795, are authorities for the defendant’s further claim, that: “ If it be assumed that Mr. Wilcox, as director, or while holding a fiduciary relation to the corporation, sold the patents to it without disclosing his interest therein, such sale is yet not void, but is voidable only,” and that “ but two courses are open to the company, to wit: they could affirm the sale, or rescind it, return the patents and sue for the price. They
In the light of the above claims we will first examine the cases cited in their support, and see precisely what thejr hold. The principal and most recent of these English cases is that of Ladywell Mining Co. v. Brookes, supra, in which the facts were, that on February 1st, 1873, one Palin and three associates purchased a leasehold mine for ¿£5,000, with a view of reselling it at a profit to a company to be formed. They afterwards made a provisional contract with a trustee for an intended company for ¿£18,000 in cash. The company was formed, having for its principal object the purchase of the mine, and Palin and his associates received their purchase money of ¿£18,000, April 4th, 1873. The contract of February 1st, 1873, was not disclosed to the company, nor did it become known to it until about June, 1883, after it had gone into voluntary liquidation. In June, 1883, the company allowed judgment by default to go against them, in an action by the lessor to recover possession of the mine. In 1884, the company commenced two actions, one against the executors of two deceased vendors, and the other against the two surviving vendors, to recover the secret profits made by the vendors on their sale to the company, on the ground that they stood in a fiduciary capacity to the company at the time they bought the mine. It was held that the evidence failed to show this to be the fact, and that they were not liable to refund the profit they made on the transaction. The judgment of Justice Sterling, 34 Ch. D., supra, was appealed from, and this appeal constitutes the case in 35 Ch. Div., supra, in which the former judgment was sustained. There are several opinions. In that by Cotton, L. J., it is said that the plaintiff claims that the defendants stood in such a position at the time of their purchase that they could not have claimed to have bought the mine for themselves, and could not, therefore, sell it at an advanced price, to the company. This is said to be mainly a question of fact; and on that question the contract of February 1st, 1873, was in its terms perfectly absolute, and not dependent on any company being formed; that though
The other cases may be more briefly stated. In Grover's Case, supra, one Mappin agreed to buy a patent from Skoines for ¿665,000, payable partly in cash, and partly in shares of a company to be formed to use the invention. Mappin also engaged to use his best efforts to organize the company. Three months later Mappin agreed with one Wright, who acted as trustee for the proposed company, to sell the patent to it for ¿6125,000 payable in cash and shares, and it was also agreed that Mappin should be appointed managing director. The company was formed and Mappin became a director. The suit was an application by Miss Gover, a subscriber pressed to pay “ calls,” to have her name removed from the company’s register of members, because of the failure to disclose the Mappin-Skoines contract in the prospectus. It was decided that the statute did not give a remedy against the company, but only against a delinquent promoter, and it held that Map-pin was not a promoter when he made the contract.
In Erlanger v. New Sombrero Phosphate Co., supra, a leasehold interest in the island of Sombrero was purchased by a syndicate acting for themselves alone, and not as the representatives of any corporation existing or proposed. Soon afterwards they formed a joint stock company and sold the lease to it for double the price paid by them. The contract
In Barr v. New York, Lake Erie Western Railroad Co., 125 N. Y. 263, 277, it is sufficient to say that the principle is laid down that a voidable contract remains good until rescinded, and that to rescind, the property obtained under the contract must be returned.
Who and what are promoters, so called, of corporations, and what their relations to the corporations which they help to form, has been more frequently judicially considered and determined by the English courts than by those of this country. Some English cases appear to be more in point, as applicable to the questions arising upon the record, than those cited by the defendant, to which we have just referred. A promoter has been defined to be a person who organizes a corporation. It is said to be not a legal but a business term, “ usefully summing up, in a single word, a number of business operations, familiar to the commercial world, by which a company is generally brought into existence.” Bowen, J., in Whaley Bridge Calico Printing Co. v. Green et al., 28 Wkly. Rep., (Q. B. Div., 1880,) 351, 352. That such persons occupy a fiduciary relation toward the company or corporation whose organization they seek to promote, is well settled by the decisions of both countries. Lord Cotton prefers to
It is an undoubted rule of law that where two or more persons associate themselves for the purpose of purchasing property, and one of them represents to the others that particular property can be bought for a designated price, which he procures to be paid by his associates, when in fact he receives a difference between said sum and a less one, he may be compelled to account for such difference without any rescission of the contract, and although the property may be worth all or more than was paid for it. Emery v. Parrott, 107 Mass., 95. The same principle is applied against promoters of corporations, in case of any secret contract more favorable than that disclosed. Pittsburgh Mining Co. v. Spooner, supra, and
A careful examination of the cases, will, we think, disclose two grounds of the liability of defendants to corporations for undisclosed profits resulting from transactions with such corporations ; first, where the defendants are corporate fiduciaries. The characteristic of this relation is trust. Such a relation undoubtedly exists between companies and their officers, such as directors. Mallory v. Mallory Wheeler Co., 61 Conn., 135. With reference to promoters, since a man cannot receive an appointment from a non-existent company, the proof may be less obvious; but it may nevertheless be shown conclusively, by a variety of representations, admissions and acts. The second ground of liability is fraud. The law does not prohibit a promoter from dealing with his company. But he must make full disclosure to the company of his relations to the property that is the subject of his deal. Suppression, concealment, or misrepresentation of material facts, is fraud; upon proof of which, rescission of contract, or repayment of the secret profits will be compelled.
A very recent English case, in which a secret arrangement between a promoter and a director of a company was considered, is that of In re North Australian Territory Company (Archer's Case), L. R. 1892, Ch. Div., Vol. 1, p. 322. The facts in the case were these: Archer being requested by the promoter of a projected company to become a director, agreed to do so upon the terms that if he should at any time desire to part with the shares he was to take in order to qualify him as director, the promoter should purchase them of him at the price he should pay for them. The company was subsequently formed, and Archer became a director, took the qualification shares, and paid for them at par, out of his own money, and from time to time acted as director; but he never
Applying the principles recognized in the decisions to which we have referred, to the case before us, it seems clear that the plaintiff in the principal ease is entitled to recover. The finding is explicit that the original arrangement between Wilcox and Foley contemplated no acquisition of any interest in the patents by Wilcox, but the organization by Wilcox of a corporation, and the sale to it of such patents; then a division between Foley and Wilcox of the avails of such sales. The written contract between Wilcox and Foley was entered into for the purpose of carrying out said plan of organizing the company, selling the patent and dividing the avails. In the agreement itself, while it is stated, under a “ whereas,” that Wilcox is desirous of owning one half of said patents, yet the very writing discloses that the proper construction of this language is that the patents, as belonging to Foley, should be sold to a joint stock corporation to be organized by Wilcox, for twice the sum that Foley was willing to dispose of them for, namely, 'for the sum of three thousand dollars in cash to be received from the company, and five thousand dollars of the capital stock of the company, and that then Foley should give to “ said Wilcox, one half of the three thousand dollars cash, as soon as received, and one half of the five thousand dollars of the capital stock of the company, as he shall receive it.”
Such being the arrangement, it was, very appropriate^, agreed that it should be kept secret. Wilcox, in soliciting. subscriptions for stock, most scrupulously observed such obligation of secrecy, and also went further, and “for the purpose of inducing persons to subscribe for said stock, stated to
It will thus be seen that the transaction between Wilcox and Foley contemplated, and Wilcox, in its execution, both as promoter and director, used every possible species of bad faith, breach of trust, and infidelity while occupying such a fiduciary relation. Placing the actual conduct of Wilcox side by side with the standard of conduct required of those in such positions, as declared by the judges in the New Sombrero Phosphate Co. Case, supra, so much relied upon as authority by the defendant, the contrast is overpowering.
Although many of the very numerous cases which we have cited, and almost numberless others to which reference might also he made, are direct authorities for the doctrine that in such cases as that before us, a defendant may be compelled to account, though no offer of rescission is made, and the property may be worth as much or more than was paid for it, and although the subject has already been incidentally referred to and considered in certain aspects of it, in this opinion, yet, in view of certain language in some of the cases upon which the defendant relies, including Mallory v. Mallory Wheeler Co., supra, and Tryon v. White & Corbin Co., 62 Conn., 171, it may be useful further to say, that properly understood, there is nothing in any of such cases cited by the defendant in conflict with the doctrine stated. Thus, in Mallory v. Mallory Wheeler Co., supra, the plaintiff sought to recover a sum as balance of salary claimed to be due him
The same rule applies in the law of principal and agent, and of attorney and client; indeed in every case where one improperly conducts himself to his own advantage while acting in any fiduciary capacity. The language, therefore, cited from Mallory v. Mallory Wheeler Co., and the statement in Tryon v. White Corbin Co., supra, p. 173, that “ an acceptance of the benefits of the transaction imposes an obligation to assume its burdens,” and the principles stated in other decisions relied upon by the defendant, have no legitimate application to cases where a corporation seeks to recover from a promoter or director money had and received, which in equity and good conscience belonged to the corporation. Instead of rescinding the transaction of purchase, the corporation by its suit, affirms it and enforces the real contract as made for its benefit, and not the pretended contract, as simulated, in order to defraud it. In such a case the
The defendant in the principal case further contends that the Yale Gas Stove Company does not appear in court with clean hands. It is said the finding shows that, “ the real bargain between Foley and the Yale Gas Stove Co., fixed the price to be paid for his patents at $3,000 in cash and $5,000 in stock ; ” but that to. avoid the joint stock law, and to defraud the public, a sham contract was made; that thereafter a court of equity should leave them where they have placed themselves. “ With what propriety,” it is asked, “ can the court decree that one party shall give up to the other an illegal profit, while permitting that other to keep an equally illegal profit obtaiued in the same transaction.”
The maxim that “ he who comes into equity must come with clean hands,” has no such application as the defendant seeks to give it. It refers solely to willful misconduct in regard to the matter in litigation. Snell’s Eq., 35. Though an obligation be indirectly connected with an illegal transaction, it will not thereby be barred from enforcement, if the plaintiff does not require tl?e aid of the illegal transaction to make out his case. Armstrong v. American Exchange Bank of Chicago, 133 U. S., 433; Lewis’ Nelson’s Appeal, 67 Pa. St., 153, 166; Woodward v. Woodward, 41 N. J. Eq., 224 Pittsburgh Mining Co. v. Spooner, supra.
Finally, the suit was properly brought by the corporation, instead of by its stockholders. The question arose in New Sombrero Phosphate Co. v. Erlanger, supra, and James, L. J., said (5 Ch. Div., p. 122) : “ The company represent the contracts of yesterday as of to-day, as they will the contracts of to-morrow or the next day, or next year. They represent the contracts which were made by the company; they are liable upon the contracts, and they have every right in respect of those contracts which an individual being would have if he had the like case, or was under the like liability. Therefore, I am of the opinion that the company not only can sue, but
In reference to the suit of Wilcox v. Foley, the contract between them was manifestly opposed to public policjq to good morals; it is illegal, and cannot be enforced. If any one has a cause of action against Foley, not upon the contract but by reason of the transaction to which it led, it is the corporation, and not Wilcox.
The Superior Court is advised that judgment be rendered for the plaintiff, in Yale Gas Stove Co. v. Wilcox, to recover three thousand dollars, with interest on $500 of said sum, from Oct. 9th, 1890, to the date of said judgment, and interest on the balance of $2,500, from Dec. 1st, 1890, with costs. And in the case of Wilcox v. Foley, that judgment be rendered for the defendant.
In this opinion the other judges concurred.