Equity Jurisdiction, Adequate remedy at law, For an accounting. Equity Pleading and Practice, Parties. Corporation.
A breach of an agreement to pay a person $5,000 in cash and to pay off a mortgage of $5,000 on certain land can afford no ground for relief in equity, there being a plain and adequate remedy at law.
Allegations in a bill in equity, that the plaintiff conveyed certain timber land to a corporation, of which the defendant owned most of the capital stock, as security for money advanced by the defendant for the plaintiff's benefit, and that the defendant agreed to be responsible to the plaintiff for the value of the timber land or its reconveyance, show no ground for relief, where there is no allegation that the defendant was under any obligation to sell the timber land or that the land had been sold, and where the prayer for a reconveyance is not supported by any offer to redeem, and where, moreover, the corporation to which the timber land was conveyed is not made a party to the suit.
Allegations in a bill in equity, that the plaintiff procured the conveyance of a sawmill by a corporation of which he owned all the stock to a corporation of which the defendant owned most of the stock, and that the defendant represented that he would account for the value of the sawmill, show no ground for relief, where neither of the two corporations concerned in the transaction is made a party to the suit.
A bill in equity by the owner of all the stock in a corporation, alleging that the plaintiff caused that corporation to convey a sawmill to a corporation of which the defendant owned most of the stock, and that the defendant represented that he would cause the use of the sawmill by the corporation to which it was conveyed to be profitable to the corporation that conveyed it, cannot be maintained without making the two corporations parties to the suit, especially the corporation which was to receive the profit alleged to have been promised by the defendant.
An allegation in a bill in equity, that the defendant represented to the commissioner of corporations that a corporation of which the plaintiff owned all the stock had ceased to do business and that it desired to have its corporate existence terminated under the direction of that commissioner, sets forth no ground for relief, for the reason, among others, that the commissioner of corporations has no power to dissolve a corporation.
De COURCY, J.
This is a bill for an accounting and for the reconveyance of a lot of land, and is before us on a demurrer. The bill contains many allegations, involving two corporations which are not parties to this suit. As against the defendant personally, the plaintiff individually makes the following complaints, which we shall consider first. In June, 1909, the plaintiff owned some timber land in Hancock, Vermont, and owned or controlled the stock of the Farrar Lumber Company, a corporation which was the owner of a portable sawmill. He sold to the defendant the soft timber upon the land, and transferred to him one half of the capital stock of the Farrar Lumber Company. The defendant agreed to pay to the plaintiff $5,000 in cash and also to pay off a $5,000 mortgage on the land that was held by one Mosher. For the breach of these two items of the agreement plainly there is an adequate remedy at law. As to the contract to finance the timber cutting operations, there does not appear to have been any failure on the part of the defendant because the timber has been cut and sold, and was the property of the defendant. The promise to pay the plaintiff $100 a month for attending to the lumbering operations has been complied with. It is not alleged that the use of the sawmill has not been paid for; but even if such is the fact, the right of action is at law and is in the Farrar Lumber Company and not in the plaintiff.
An additional ground of complaint arose during the lumber operations above stated. The plaintiff was indebted to one Jones in the sum of $4,500, of which amount $3,000 was secured by a second mortgage on the timber land, and $1,500 by some incumbrance on the sawmill. The defendant advanced the money to pay this mortgage, and as security for its repayment the plaintiff conveyed the timber land to the North American Spruce Lumber Company, a corporation of which the defendant owned most of the capital stock. While it is alleged that the defendant agreed to be responsible to the plaintiff for the value of the land or for the return of the property, it is not suggested that he was under any obligation to sell the land, or that it has been sold. The prayer for a reconveyance is not supported by any offer to redeem; and a further valid objection raised by the demurrer is that the North American Spruce Lumber Company, which holds the title, is not made a party to the bill.
Again, it is alleged that upon the request of the defendant the plaintiff caused the title to the sawmill to be transferred to the North American Spruce Lumber Company, and that the defendant represented that he "would account for" the value of the same. Presumably by this is meant that the defendant would pay what the mill was worth. Here again is a right of action in the Farrar Lumber Company, the owner of the mill, and the objection is seasonably made that it is not a party to this suit. And both corporations are necessary parties to the alleged breach of an agreement by the defendant to account both for the value and the use of the land and mill by the North American Spruce Lumber Company.
It is set out in the fourth paragraph of the bill that the defendant also represented that he "would cause the use of said sawmill in the operation of its property by said North American Spruce Lumber Company under contracts which would result in profit to said Farrar Lumber Company, and consequently to both the plaintiff and defendant as owners of the stock thereof." It is apparent that the Farrar Company is a necessary party to the enforcement of the action, if any, that is based on this indefinite promise.
It is not clear whether the plaintiff intends by the tenth paragraph of his bill to claim a further ground for relief. This sets out that the defendant represented to the commissioner of corporations that the Farrar Lumber Company had ceased to do business and that it desired to have its corporate existence terminated under the direction of said commissioner. It is sufficient to say that the power to dissolve a corporation rests, not with the commissioner, but with the court or Legislature. St. 1903, c. 437, §§ 2, 51.
Upon examination of the various allegations of wrongdoing on the part of the defendant set forth in the plaintiff's bill, we are constrained, for the reasons already stated, to sustain the demurrer to the bill in its present form.
So ordered.