Mussina v. Goldthwaite

Walker, J. The Houston City Mills Manufacturing Company - was incorporated in 1864, with a capital stock of $500,000. It [131] appears that, in 1868, shares had been taken in the capital stock to the amount of $75,000. On the ninth day of June, 1868, there were issued by the company $100,000 in bonds of different denó'minations, payable to George Goldthwaite or bearer; at the same time the company mortgaged its corporate property to Goldthwaite, as trustee for the holders of the bonds, to secure their payment. The company failed to pay the interest on the bonds. Goldthwaite filed his petition in this case on the twenty-third of April, 1870, in which he claims that the principal and interest of the bonds have become due, according to their tenor and effect, and he seeks to foreclose the mortgage in favor of certain of the bondholders. Simon Mussina files a plea of intervention, as the owner and holder of six shares of $500 each in the capital stock of the company. It appears that these shares were originally issued to John E. Owens. There were no parties before the court except Goldthwaite, the trustee, plaintiff, and the company, defendant, which suffered judgment by default. The plaintiff demurred to the plea of intervention, and the demurrer was overruled by the court. It is claimed, upon the authority of Canaway v. Morgan, 5 Martin, and Walker v. Dunbar, 7 Martin, (which authorities, we think, are wrongly cited,) that the intervenor cannot change the case as made by the original parties; that he cannot change the character of the suit, and cannot make another party. But we think that an intervenor, claiming an interest in the subject mat-' ter in dispute, may interpose his claim as a defendant to the suit, having been made such by leave of the court, the better to protect his interests; and if there be fraud and collusion between the original parties, whereby his interests are compromised or prejudiced, he may set it up affirmatively and prove it, and thereby defeat any fraudulent design intended to be carried out by the suit. The case [132] of Allen v. Curtis and others, 26 Connecticut, 456, cited by ap.- - pillee,- we think supports this doctrine. It is therein decided that-an individual stockholder may maintain a petition in equity against' the directors of a corporation for misconduct in office, where the corporation is unable to bring a suit at law, or where, through' collusion or fraud, it neglects to seek redress, and an application has been made to the directors for the use of the corporate name;to bring "suit, which has been refused. We see no good reason for insisting upon this latter condition,where the directors, as in this case, are themselves charged with fraud. The case of Shelby v. Dixon, 24 Georgia, 273; Kean v. Johnson, 1 Stockton, 401; Revere v. Boston Copper Company, 15 Pick., 351; Brown v. Vandyke, 4 Halstead, 795; and Brown v. Vandyke, 5 Allen, 230, all cited by' the appellee, have no further- bearing upon the case- at- bar, than the case of Allen v. Curtis. Where a party states facts in his pleadings-, from which, ii-proven,. the court must infer fraud as a legal sequence, it is not-necessary that he should allege fraud specifically. ' The bill of exceptions shows that on the trial of the cause the intervenor sought, by the evidence of W. R. Baker, Secretary-/ and B. A. Shepherd, President, of the company, to prove fraud- on the part of the directors of the company, in issuing the bonds, and certain'Other matters alleged-in his petition, which-we think it-' perfectly legitimate for him to prove,, and it was error in the court-to exclude -the evidence. We think the judgment of the district court is objectionable on the ground of uncertainty. (See Spiva v. Williams, 20 Texas, 442; Claiborne and others v. Tanner’s heirs, 18 Texas, 68.) There should have been a finding of the jury, of -the amount due the plaintiff. (See May v. Taylor’s administrator, 22 Texas, 348.) As to the averment of facts constituting frauds, see McMahan v. Rice, 16 Texas, 335. We deem it-unnecessary in this decision te [133] pass upon the right of corporations to issue bonds in a proper case; here it is charged that they were fraudulently issued, that there was no necessity for their issue, that the affairs of the company were in a healthy and prosperous condition, and that the creation of such a debt was a fraud upon the stockholders, and intended to Operate to the private advantage of the directors. There is nothing appearing in the record to show that the rights of third parties, innocent holders of these bonds, have intervened to prevent any equitable adjustment of all rights between the company and the individual stockholders; and that they may have such ah adjustment, the.judgment of the district court is reversed and the cause remanded. Reversed and remanded.