Wheeler v. Bank of Edenton

Schenck, J. As to the damages alleged to have been suffered by reason of the unlawful and wrongful seizure and purchase at a grossly inadequate price of the assets of the Edenton Lumber Company, it is clear that if such damages were incurred they were incurred directly by the corporation, and only indirectly by the plaintiff as a stockholder. With certain exceptions, into which this case does not fall, a stockholder cannot maintain an action in his own name for damages suffered by a corporation in the absence of an allegation that he had made effort to have the officers and directors of the corporation, or the receiver in case of a receivership, to institute action or take such other steps as were necessary to protect his interest as a stockholder, together with the interest of the other stockholders, and that such representatives of the corporation had failed to act. Moore v. Mining Company, 104 N. C., 534; Ham v. Norwood, 196 N. C., 762; Merrimon v. Paving Co., 142 N. C., 539. As to the damages alleged to have been suffered by the plaintiff by reason of the failure of the defendant bank to pay the check given by him to Spivey & Company, which resulted in his indictment, trial, and conviction for giving a worthless check, such conviction in the recorder’s court, and in the Superior Court, unappealed from, in the absence of any allegation of fraud on the part of the defendant bank in the procurement thereof, must be presumed to have been regularly and properly had. Such being the ease, the plaintiff has suffered no legal wrong for which damages may be recovered. An action never lies when a plaintiff must base his claim, in whole or in part, on a violation by himself of -the criminal law of the State, and this principle is not impaired even when the plaintiff is acting under the authority of the defendant. Lloyd v. R. R., 151 N. C., 536, and cases there cited, Bean v. Detective Co., 206 N. C., 125. Since the plaintiff in his reply admits the execution and endorsement of the past-due notes, now in the hands of the defendant, as alleged in the counterclaim, and merely pleads the “breach of agreement and damages set up in the complaint in bar of recovery” thereon, it is manifest that the defendant was entitled to judgment as entered by the court. Affirmed.