Equity Pleading and Practice, Amendment, Appeal, Plea. Equity Jurisdiction, Minority stockholders' bill. Corporation, Rights of minority stockholders, Officers and agents. Waiver. Election. Words, "Value of the stock."
If the plaintiff in a suit in equity appeals from an interlocutory decree sustaining a demurrer to the bill on the ground of multifariousness and afterwards by leave of court amends the bill so that the objection of multifariousness is removed, he waives his right of appeal.
If a defendant files an affirmative plea to a bill in equity and the plaintiff files no replication thereto, the facts well alleged in the plea are admitted by the plaintiff and the sole question on the plea is, whether as a matter of law, upon the facts therein well alleged and the facts well alleged in the bill and not denied in the plea, the suit can be maintained.
In St. 1903, c. 437, § 44, giving a stockholder in a corporation, who has voted against a sale by the corporation of all of its property and assets, a right, upon a demand in writing within thirty days after such vote, to receive "the value of the stock" held by him which, if he and the corporation cannot agree thereto, shall be determined by appraisers, the words, "the value of the stock," mean not merely its market value if it is traded in by the public, but its intrinsic value, to determine which all the assets and liabilities of the corporation must be ascertained.
If the owner of twenty-three per cent of the capital stock of a corporation, having voted at a stockholders' meeting against action transferring all its property and assets and having made a demand in writing of the corporation for the value of his shares under St. 1903, c. 437, § 44, thereafter and while he is seeking to ascertain the real value of the shares discovers that the holders of the other seventy-seven per cent of the stock by conspiring together fraudulently have misappropriated to themselves large sums of money belonging to the corporation under the guise of salaries which were grossly exorbitant and greatly in excess of the fair value of the services rendered, have managed the affairs of the corporation to their personal profit and have so manipulated and falsified its books as to conceal their fraud and to obscure the true state of the corporation's assets; and if about seventeen months after making such discovery the minority stockholder agreed with the majority stockholders to submit the matter of the appraisal of the value of his shares to three men then selected and determined upon as arbitrators under the above statute, but no hearings are held before such arbitrators, the minority stockholder has not thereby elected to waive his right to maintain a suit in equity to compel an accounting and restitution by the majority stockholders.
The right given by St. 1903, c. 437, § 44, to a minority stockholder to compel a corporation, the majority of whose stockholders against his vote have voted to transfer all of its property and assets, to pay him the value of his shares, and his right, pending such payment to him, to compel an accounting by the majority stockholders who, while in control of the corporation, have misappropriated its property and manipulated and falsified its accounts so as to conceal their fraud and to make it difficult if not impossible to ascertain the true state of the corporation's assets, are not inconsistent but are concurrent.
Until such a minority stockholder has been paid the value of his shares, determined as provided by the statute, he still is a stockholder and has a right to pursue in equity his rights as such minority stockholder in behalf of the corporation against the majority stockholders to compel an accounting and restitution by them; because as a stockholder he is entitled to any enhancement in the value of his shares due to such restitution.
The scope of a bill in equity is to be determined by its allegations and not by its special prayers for relief.
If the owners of seventy-seven per cent of the capital stock of a corporation, who are its officers and are in full control of its affairs, cause a meeting of the stockholders to be called and in pursuance of a vote there taken against the vote of the owner of twenty-three per cent of the stock sell all of its property and assets to themselves to hold and manage under a trust which was not intended nor calculated by them to be in the interests of the corporation and of all of the stockholders but was deliberately planned and accomplished for the sole purpose of enabling them to acquire the property of the corporation for their own benefit and to protect and secure themselves against any attempt on the part of the corporation or of the minority stockholder to compel an accounting by them and a restoration of moneys theretofore wrongfully misappropriated by them and to enable them to carry on and enlarge the business for their sole personal advantage, such conduct is a deliberate fraud upon the corporation and the minority stockholder and he can maintain a suit in equity in his own behalf and in behalf of the corporation to set aside the transfer and to compel an accounting and restoration by the majority stockholders.
BRALEY, J.
The bill, as originally framed, charged the defendants as directors with having wrongfully appropriated funds of the corporation to a large amount for their own personal benefit, and also that at a meeting of the stockholders, duly called to take action on a plan proposed by the directors to transfer all the assets of the corporation to themselves as trustees to hold under the declaration of trust, a copy of which is annexed to the bill, the plaintiff representing a minority of the capital stock, having voted against the transfer, thereafter made a demand in writing upon the corporation in accordance with the provisions of the St. 1903, c. 437, §§ 3, 44, which read as follows: "A stockholder in any corporation which shall have duly voted to sell, lease or exchange all its property and assets or to change the nature of its business in accordance with the provisions of section forty, who, at the meeting of stockholders, has voted against such action may, within thirty days after the date of said meeting, make a demand in writing upon the corporation for payment for his stock. If the corporation and the stockholder cannot agree upon the value of the stock at the date of such sale, lease, exchange or change, such value shall be ascertained by three disinterested persons, one of whom shall be named by the stockholder, another by the corporation and the third by the two thus chosen. The finding of the appraisers shall be final, and if their award is not paid by the corporation within thirty days after it is made, it may be recovered by the stockholder from the corporation in an action of contract. Upon payment by the corporation to the stockholder of the agreed or awarded price of his stock, the stockholder shall forthwith transfer and assign the stock certificates held by him at, and in accordance with, the request of the corporation."
But, having as he further alleges made the demand before he had any knowledge of the misappropriation by and fraudulent management of the directors, he also sought to maintain the suit as a minority stockholder.
The defendants having demurred, the demurrer was sustained on the sole ground of multifariousness. While the plaintiff appealed from the interlocutory decree, he subsequently amended by striking out the twenty-fourth and modifying the twentieth paragraphs relating to the demand for an appraisal and omitting the corresponding prayer for relief. By the allowance of this amendment he waived his appeal. It related back to the filing of the bill, and the amended bill became the original bill. Hurd v. Everett, 1 Paige, 124.
The defendants, however, demurred to the amended bill and also filed a plea. We first consider the plea. It is a pure or affirmative plea, relating only to proceedings to be taken by a dissenting stockholder under the St. of 1903, c. 437, § 44, and states matters not apparent on the face of the bill as amended. Story, Eq. Pl. (8th ed.) § 660. The object being to defeat the bill without resort to a general answer, and the plaintiff not having filed a replication, the facts stated in the plea are admitted, but their sufficiency as matter of law to bar recovery is denied. Farley v. Kittson, 120 U.S. 303.
A minority stockholder, if he votes against the action taken by the corporation, is entitled under the statute to "payment for his stock." If the corporation and the stockholder cannot agree, the value is to be ascertained by disinterested arbitrators. It is obvious that "the value of the stock" means not merely the market price if the stock is traded in by the public, but the intrinsic value, to determine which all the assets and liabilities must be ascertained. The stockholder as well as the arbitrators, if arbitrators are appointed, ordinarily must resort to the books of the corporation for information, although a condition of affairs may exist where the books of themselves would fail to exhibit the true financial condition of corporate affairs.
It is specifically alleged in the bill that the directors holding nearly four fifths of the capital stock, while the plaintiff held the remaining shares, in violation of the by-laws voted themselves salaries "grossly exorbitant and greatly in excess of the fair value of the services they rendered" and that not only were such misappropriations concealed from the stockholders including the plaintiff, but being in complete control of the corporation, they managed its affairs for their own personal profit, and the books of the company were so manipulated and falsified, that it was "difficult, if not impossible, to determine from the accounts of the concern the amounts so drawn" or appropriated.
A further and important allegation appears, that "because of such acts of concealment your complainant did not know what the profits of the company were, and was totally ignorant of the fact that these enormous salaries had been taken from the profits of the concern, and remained in ignorance thereof until some time after the attempted sale," meaning the transfer under the declaration of trust.
And these allegations not being contradicted by the plea are admitted to be true. French v. Shotwell, 5 Johns. Ch. 555. 10 R.C.L. Equity, § 223. The statutory option given to a dissatisfied stockholder is either to acquiesce or to accept the fair value of his stock and retire from the corporation. If he retires the valuation on which payment is to be made is not what the majority stockholders may be willing the corporation should pay, but is to be ascertained as if liquidation had been voted and all the corporate property after the payment of debts had been marshalled for the benefit of all the stockholders. It is plain that the defendants through their control of the corporation cannot compel the plaintiff, who was ignorant of their misdoings, to accept payment for his stock upon a valuation of the assets which excludes the amounts misappropriated. A demand under such circumstances cannot be held to have the force and effect of the demand contemplated by the statute, and there was no irrevocable election, as the defendants contend, to receive payment upon a valuation to be fixed by agreement of parties, or by arbitration, whereby all demands for an accounting or proceedings to set aside the transfer as violative of his just rights as a dissenting or minority stockholder were waived.
The right moreover to demand payment and the right to seek relief in equity in aid of the demand are not inconsistent but concurrent, and under such circumstances there is no necessity for an election. Mason v. Mason, 4 Sandf. Ch. 623, 632. Barnett v. Philadelphia Market Co. 218 Penn. St. 649. Winfree v. Riverside Cotton Mills, 113 Va. 717, 724.
But even if the plaintiff could be deemed to have elected, he remained a stockholder until payment by the corporation for his stock at the agreed or awarded price, with the right if necessary to maintain a minority stockholder's bill for an accounting and the restoration to the corporation of the unlawful gains and profits obtained by the defendants while acting in a fiduciary capacity. The enhancement of assets from this source manifestly would result in the enhancement of the price or value of his stock. Douglass v. Concord Montreal Railroad, 72 N.H. 26. Barnett v. Philadelphia Market Co. 218 Penn. St. 649. Colgate v. United States Leather Co. 3 Buch. 72, 98. Winfree v. Riverside Cotton Mills, 113 Va. 717, 724. Mason v. Pewabic Mining Co. 133 U.S. 50. In re Imperial Bank of China, India, Japan, L.R. 1 Ch. 339, 347. In re Consolidated South Rand Mines Deep, Ltd. 1 Ch. 491. Thompson, Corp. (2d ed.) § 6060.
The defendants by their demurrer admit all the material allegations which are well pleaded, and the scope of the bill is to be ascertained from its frame and not by the special prayers for relief. Fordyce v. Dillaway, 212 Mass. 404, 411. It is settled that the amended bill can be maintained to compel the defendants to make restitution of all moneys misappropriated and for which they were jointly and severally liable to the corporation at the date of transfer. Von Arnim v. American Tube Works, 188 Mass. 515. United Zinc Companies v. Harwood, 216 Mass. 474, 476, 477, and cases cited.
But if the grounds of demurrer, that the bill does not state a case for equitable relief and that, the option given by statute to a dissentient stockholder being exclusive, the remedy at law therefore is plain and adequate, are not well taken for reasons sufficiently stated, and the bill on its face fails to show such delay as to preclude the plaintiff, the demurrants further urge that he cannot maintain the bill to set aside the transfer. Manning v. Mulrey, 192 Mass. 547. Daly v. Foss, 199 Mass. 104. Douglass v. Concord Montreal Railroad, 72 N.H. 26, 31.
The bill alleges that the defendants, having acquired virtual ownership and control of all the stock of the corporation excepting the small percentage owned by the plaintiff, caused a meeting of the stockholders to be called to take action with reference to selling or disposing of all the assets and business of the company, and the vote thereupon passed that the company sell all its property and assets including its good will to the defendants to hold and manage under the declaration of trust was not intended to be a transaction in the interests of the corporation and the stockholders, but was deliberately planned and accomplished for the sole purpose of enabling the defendants to acquire for their own benefit the property of the corporation, and to protect and secure themselves against any attempt on the part of the corporation or of the plaintiff to seek and compel an accounting of the moneys theretofore wrongfully appropriated, and to enable them to enlarge and carry on the business beyond the chartered powers of the company solely for their own personal advantage, as well as to retain under the guise of a trust with certificates of preferred and common stock a greater share of the profits than they would have obtained if the transfer had not been made. A transaction of this character, promoted and consummated by the directors who were also the majority stockholders, was a deliberate fraud upon the corporation and the plaintiff. The vote and transfer cannot bar the right of a dissentient stockholder, who has no remedy within the corporation because the wrongdoers are in full control, from maintaining a bill in equity in its behalf to have the transfer set aside and for an accounting. The property and profits when recovered constitute assets of the corporation. Brewer v. Boston Theatre, 104 Mass. 378. Greenfield Savings Bank v. Simons, 133 Mass. 415. Warren v. Para Rubber Shoe Co. 166 Mass. 97. Von Arnim v. American Tube Works, 188 Mass. 515. United Zinc Co. v. Harwood, 216 Mass. 474, 476. Smith v. Bank of Victoria, 41 L.J.P.C. 34. 7 R.C.L. Corporations, §§ 287, 609.
The result is that the interlocutory decrees overruling the demurrer to the original bill on all grounds except for multifariousness, and the demurrer to the amended bill, and adjudging the plea to be insufficient in law, from which the defendants' appealed, are affirmed.
Ordered accordingly.