Tichenor v. Dr. G. H. Tichenor Co.

JANVIER, Judge. Relator, Dr. George H. Tichenor, Jr., proceeding under section 39 of Act No. 260 of 1928, seeks to compel respondent corporation to file with the secretary of state of the state of Louisiana, and to also furnish to relator, an annual report for the year 1933 prepared and verified in accordance with the said statute. That statute, which sets forth the general law of Louisiana with reference to the formation, operation, and control of corporations, provides in the said section for the filing of an annual report with the secretary of state, and also requires that every corporation shall “once in every calendar year, upon the request of any shareholder of record, send to such shareholder, by mail addressed to his last known address, a report made and verified by the president or vice-president and secretary or assistant-secretary, containing the information hereinabove required to be contained in the last annual report of the corporation preceding said request,” and further provides that for neglect or refusal to do so the officers “shall be under a penalty of fifty dollars, recoverable by such shareholder, for every day such officer or officers shall so neglect or refuse to make and mail or deliver the statement here-inabove described.” In the district court the alternative writ of mandamus was made peremptory, and respondent has appealed. The corporation concedes that it is required by the statute to file the said report with the secretary of state and also to furnish a copy to any stockholder who may make request therefor, but it contends that it has substantially complied with the statutory requirement When the report was made to the secretary of state, he refused to accept it, since it lacked proper verification, but, upon his returning it to the corporation, the proper officials signed and verified it and returned it, and he, the said secretary of state, makes no complaint thereto at this time, so that, so far as he is concerned, it is manifest that the writ of mandamus must be recalled. When, on February 12, 1934, the relator made demand upon the corporation for a copy of the report, he couched his demand In. the following language: “9 * * You are, again notified of failure on the part of the. writer to receive Annual Report of Oom-; pany. Said report to be acceptable must contain all matters covered and prescribed by. General Corporation Laws of Louisiana and properly attested by written signature of the Company’s legal officers. Failure to *165 receive report promptly, suit will be filed and any cost of court or attorneys fees resulting from officers non-performance of duty will be protested and suit for recovery of funds thus expended filed.” On March 23 relator received a copy of the report, which copy bore neither signature of officials nor verification. However, the relator did not call attention to these deficiencies, but on March 27 sent to respondent corporation a telegram reading as follows: “On February twelve, 1934, by letter G.H. T./B.S.T. I made the following demand you are again notified of failure on the part of the writer to receive annual report of Company said report to be acceptable must contain all matters covered and prescribed by general corporation laws of Louisiana and properly attested by written signature of the companys legal officers, etc. as this and other demands have not been complied with I am going to file suit.” It will be noted that this telegram did not refer to the report as lacking verification or signatures nor did it indicate that any report had been received. On April 3 this suit was filed. While relator was undoubtedly entitled to a report properly signed and verified, it was his duty .on receiving a defective report to call attention to the defects and to demand that the signatures and verification be furnished. The statute provides that it is only a stockholder who makes request for a statement who is entitled thereto, and we do not think that a stockholder who makes a request for such statement and is furnished one by the officers acting in good faith can rush into court in an obvious effort to take advantage of the penalty feature of the statute, unless he first calls attention of the officials to the defects and waits a reasonable time for them to supply the deficiencies. The officials of the corporation knew that they had sent plaintiff an annual statement as he had requested, and, until he called their attention to the particular features thereof about which he • complained, they would have no means of knowing what he required. We agree with the respondent that “the failure of plaintiff to get a report which was signed, is due solely to his own fault and not to any neglect, failure or refusal to furnish the report properly signed.” We believe that relator has not laid the proper foundation by making the proper request for the report, and it necessarily follows that the judgment appealed from must be reversed. It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that the alternative writ of mandamus be and it is recalled and annulled at the cost of relator. Judgment reversed. Alternative writ of mandamus recalled.