Johnson v. C. Brigham Co.

Dunn, J. An appeal from the decree which, by dismissing a petition under the Minority Stockholders Act, (R. S., chap. 51, sec. 60 et seq.), on the ground that no case had been made out, denied the valuing of certain shares of capital stock. Conferring rights, the act provides in effect that, in the instance of a solvent. going corporation, the majority stockholders whereof have voted to sell its entire property, otherwise than in the ordinary and usual course of business, any minority stockholder who voted in the negative on the proposition of selling may, after the filing of written dissent, if the corporation does not petition, himself petition for the corporation to pay the value of his shares, as the same shall be judicially determined. Time limitations are of unimportance on the present record. Notwithstanding that he voted differently, the minority stockholder will be bound by the majority decision, unless he confirm his-preference by writing. Section 65. On petition and hearing, it is for the court to fix a valuation on the minority stock, and give judgment. When the judgment is satisfied, the stock passes to the corporation, and the stockholder retires. Section 63. The remedy rests wholly upon the statute, and is enforceable only on making evident that conditions precedent had been observed. First, it must be established that on the proposal to sell he who invokes relief voted in the negative. The minority stockholder, or his proxy, must have done the active, positive thing of recording a vote against selling. That such vote was not recorded is the crux of this proceeding. The corporation of C. Brigham Company was not insolvent or in failing condition. Of shares of stock, three thousand were outstanding. At the meeting on May 1, 1922, no action was taken on whether the business be sold out and-the assets conveyed, because of the absence of a quorum. Adjournment to another day one fortnight ahead was made. Next time, all the stockholders were present or represented, but the owner of sixty-nine shares, he who later filed the petition. It was voted that, for the consideration of shares in another company, there be sold to that company by the Brigham corporation its property and rights of every kind, except its right to be an artificial being. The vote was unanimous. [110] Seasonably after the meeting, the owner of the sixty-nine shares filed his written dissent. . The corporation never petitioned to have the shares valued. But the owner did. An interposed demurrer was not pressed. Answer was made, and the case of the petitioner heard. On suggestion of the d eath of the petitioner, the cause was revived for his administrator and for trustees. They prosecuted. Then came the decree, and-the appeal. It is the position of appellants that the minority stockholder must be held to have voted in the negative in the sense that he did not vote in the affirmative. The argument is that his not having been present and voted, followed by the fact of his later dissent, is equivalent to his having voted in the negative at the time that the other stockholders actually voted in the affirmative. The primal requisite of the statute is a vote which refused assent. This essential condition the petitioner did not meet. When a right is created by statute, and a specific remedy is provided, the right can be vindicated in no other way than by pursuing the prescribed course, step by step. It was proper to dismiss the petition. And the appeal ends. Appeal dismissed. Decree below affirmed.