Commercial Trust Co. v. Idaho Brick Co.

STEWART, J. This action was brought by the respondent against the appellants for the purpose of recovering a money judgment against the Idaho Brick Company, Ltd., a corporation, 'and to foreclose two certain trust deeds or mortgages given as security for money advanced by the respondent to the appellants, the Idaho Brick Company. One of the trust deeds was executed by the brick company on real estate owned by it, and the other trust deed was executed by the defendants L. L. Haynes and Abbie R. Haynes on property owned by Abbie R. Haynes. A decree was entered in favor of the respondent against the Idaho Brick Company for the sum of $35,152.04, less the sum of $3,362.76, or $31,789.28, and the further sum of $2,747, attorney’s fees, a total of $34,536.28. The decree was also for foreclosure of the two trust deeds or mortgages. The $3,362.76 was a credit allowed by the court on account of brick sold by the respondent after the commencement of the action. At the time of the filing of the complaint, William F. Stilz was appointed receiver in the action, and he took charge of the real estate and business of the brick company. The complaint alleges that the brick company, in violation of a written agreement of October 31, 1910, entered into between the brick company and the trust company, sold and disposed of brick belonging to the trust company and refused to turn over the proceeds and appropriated $500 from such sale, and that the entire assets of the company, consisting of real property, the business, book accounts, equipment and goodwill and all other assets were of a value not to exceed $15,000, including the real property of the defendant, Abbie R. Haynes, for which one of the trust deeds was executed, and that 'all of said property was insufficient to discharge the debt due plaintiff, and that the brick company was insolvent. It is further alleged in the complaint as originally filed that the defendant, on the 5th of November, 1910, as further security for payment of its indebtedness to the plaintiff, executed an assignment or bill of sale of all its stock or product of brick manufactured or to be manufactured then located on the premises, and that said assignment or bill of salo con [761] tained a provision that the brick company should turn over to the trust company the entire proceeds from the sale of such manufactured and to be manufactured brick. This latter part of the complaint it appears was stricken out, and subsequently the court held in its findings and conclusions that the above-mentioned instrument was a bill of sale absolute and that the transaction evidenced by said instrument was a sale. After this amendment of the complaint, the cause was tried as an action for the foreclosure of the two trust deeds. The trust deeds and the bill of sale were executed November 5, 1910. Upon the appointment of the receiver he took charge of the brick company’s plant, including the real and personal property, except the brick that was claimed by the Commercial Trust Company under its bill of sale. At the time of the taking of the testimony the receivership had not been terminated, but the brick claimed by the trust company under the bill of sale and disposed of up to the date of trial has been accounted for by the respondent. There are twenty-seven errors assigned, and the appellant presents the case upon three classes of propositions, based upon three different premises: 1st, that the instruments, including the bill of sale, the deeds and the October agreement are each and all valid and enforceable in a court of equity. 2. That the instruments named above are void, invalid and cannot be enforced in a court of equity. 3. That all the instruments executed by Haynes' for and on behalf of the corporation are invalid except the bill of sale. The trial court made findings of fact and conclusions of law upon which a decree was entered in accordance with the findings of fact and the conclusions of law, in substance as follows: That the Commercial Trust Company recover from the defendant Idaho Brick Company, Ltd., the sum of $31,789.28, 'and for attorney’s fees $2,747 and costs; that a certain deed dated November 5, 1910, executed by the defendant the brick company to plaintiff, is a mortgage for the purpose of securing the sums of money above mentioned. (Then follows a description of the property.) It was also [762] decreed “that a certain deed dated November 5, 1910, executed by the defendants L. L. Haynes and Abbie R. Haynes, his wife, to plaintiff is a mortgage given to secure the sums1 of money above mentioned, ’ ’ describing the property. The court also decreed that a certain instrument dated November 5,1910, and in form a bill of sale of stock and product manufactured ■and in process of manufacture at the yards of the brick company, to plaintiff, was at all times a bill of sale and sale absolute of the personal property described in the instrument; also that the two deeds of real property mentioned are foreclosed as mortgages and the defendants to this suit and each of them .and all persons claiming by, through, or under them of any of them are foreclosed of all right, title or interest and equity of redemption in and to all- of said property and each part thereof, saving only the statutory right of redemption; that said real property be sold as provided by law and that the proceeds be applied upon the money to which the plaintiff is decreed to be entitled. Then follows an order that a certain thirty-acre tract of land be sold first and if the amount of money realized therefrom be insufficient to pay the amount of the decree awarded plaintiff that a certain twenty-two acre tract described, the property of the defendants, L. L. Haynes and Abbie R. Haynes, his wife, be sold and the proceeds thereof be applied on the decree; and if the total amount of sums realized from the sales of all the said property be insufficient to pay the amount of the decree the plaintiff is declared to be entitled to, that plaintiff have a deficiency judgment for balance against the brick company; that upon the sale of said real property the purchaser be put into possession thereof; that if no redemption of the same be made within the statutory period that sheriff’s deed be executed to such purchaser. Costs were allowed. This appeal is from the decree. The record consists of more than two hundred pages of evidence and a number of exhibits, and it must be conceded that the evidence is in conflict and many questions of fact have been determined by the court, and the evidence being extensive upon each of these questions and in conflict, the findings [763] of the trial court upon what the court deems the preponderance of the evidence should not be reversed upon the rules 'announced by this court upon the reversal of a judgment or verdict upon the preponderance of evidence or the inconsistency of the amount of the judgment. (McGuire v. Lamb, 2 Ida. 378 (346), 17 Pac. 749; McCrea v. McGrew, 9 Ida. 382, 75 Pac. 67; Vollmer Clearwater Co. v. Rogers, 13 Ida. 564, 92 Pac. 579; Salisbury v. Spofford, 22 Ida. 393, 126 Pac. 400; Petajaniemi v. Washington Water Power Co., 22 Ida. 20, 124 Pac. 783; Brinton v. Steele, 23 Ida. 615, 131 Pac. 662.) Many pages of appellant’s brief are devoted to argument that Stilz, in his conduct as receiver and in performing his duty and in controlling the property after he was appointed, did not act in good faith and that he did not proceed as the law directed and did not perf orm his duty as the law required. We have carefully examined these questions and we find no merit in such contention. The trial court has found against the appellant and the evidence supports the findings. The following authorities support this question: The provisions of the statute in relation to the appointment of a receiver are contained in see. 4329, Rev. Codes, among which are subds. 2, 5 and 6 as follows : “2. In an action by a mortgagee for the foreclosure of his mortgage.and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt.” “5. In the case when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights; “6. In all other cases where receivers have heretofore been appointed by the usages of courts of equity.” The sections of this statute are similar to see. 236 of the Washington Code (Hill), and they are construed in the ease of Oleson v. Bank of Tacoma, 15 Wash. 148, 45 Pac. 734. This case was followed in Davis v. Consolidated Coal Co., 41 Wash. 480, 84 Pac. 22. [764] In the case of Dalliba v. Winschell, 11 Ida. 364, 114 Am. St. 267, 82 Pac. 107, and Hewitt v. Great Western Beet Sugar Co., 20 Ida. 235, 118 Pac. 296, this court very clearly approves the doctrine contended for by counsel for respondent: “A court of equity has the power and authority in a proper ease to appoint a receiver to take charge of the property and to care for and protect the same, and decree the charges therefor, as a prior claim and lien against the property, paramount to all mortgages or other liens or encumbrances.” "We think there is no question as to the authority of the court to appoint a receiver 'and that it was necessary to appoint a receiver to take charge of the property and care for and protect the same. Appellant urges very earnestly the validity of the corporation and the acts of the brick company involved in this case. The court has made findings upon these contentions, and the evidence supports the court’s findings, that the law was complied with and the acts were valid acts of the brick company, and it would be a waste of time to recite the evidence upon this question. There can be no question in the minds of the court as to the validity of the rights of the plaintiff to recover upon the notes sued upon or the question as to such notes being properly secured by trust deeds which were intended to be security or a mortgage securing said indebtedness. The appellant also contends that the instrument"of November 5, 1910, is a mortgage and that having been foreclosed as a mortgage the entire proceedings in the case are void and should be set aside. This question seems to have been before the trial court and the pleadings were amended and evidence was introduced, and the trial court found and the testimony sustains the finding that said instrument was an absolute bill of sale and was intended as such both by the trust company and the brick company, and this court is satisfied that the finding of the trial court was sustained by the evidence. The finding of the trial court under these circumstances will not be disturbed. It appears clearly and conclusively in this case that L. L. Haynes practically owned the Idaho Brick Company and eon765 ducted the company’s business and made contracts for the company and borrowed money for the benefit of the company which was used and appropriated by the company, and that the obligations of Haynes were fully ratified and appropriated by the Idaho Brick Company for five years and that no stock was issued until after the execution of the instruments of October and November, 1910. In Cyc. 349-352, the author discusses the subject, and on p. 351, sec. 5, says: “There are decisions to the effect that a corporate by-law is binding on third persons doing business with the corporation, who have knowledge of the by-law. But it is suggested that this principle can have no operation except where the by-law has established a course of business on the part of the corporation known to the third person; where •it tabes the form of a regulation of the business of the corporation as toward the public, as in the case of a common carrier of passengers; or where the third person has been in some way affected with knowledge of it and brought into privity with it, so that it may operate as a contract between the corporation and himself. In other eases it operates merely as a regulation among the members of the corporation inter sese, or as between the corporation and its members, and has no effect as a law, upon third persons, and no influence upon contracts between the corporation and other parties. A third person can enforce them only when he shows some privity, as where he has advanced money or other value upon the credit of a corporate by-law or the like.” In the recent case of Mantle v. Jack Waite Mining Co., 24 Ida. 613, 135 Pac. 854, 136 Pac. 1130, this court discusses circumstances and conditions which present some facts which are somewhat similar to the facts involved in this ease, and the relationship between the controlling persons and the corporation organized by such parties, and also other parties, and the validity of contracts made by the parties dealing with a prospective corporation which adopted and ratified the acts of the parties dealing with the corporation finally incorporated. (April 13, 1914.) We find no other assigned errors which have any merit or which justify a further„discussion of assignments of error or the law governing the case or the sufficiency of the evidence. The judgment is affirmed. Costs awarded to the respondent. Ailshie, C. J., and Sullivan, J., concur.