Proctor v. Piedmont Portland Cement & Lime Co.

Evans, P. J. (After stating the facts.) 1. The motion to dismiss the bill of exceptions as not being certified within thirty days of the judgment complained of is denied. Where it is recited in a 'bill of exceptions that it was tendered to the judge within the time prescribed bjr law, and the judge signs the usual and statutory certificate, which certifies as true the recitals in the bill of exceptions, and where - it does not appear that the failure of the judge to sign and certify within the statutory limit, was due to the fault of the plaintiff in error or his counsel, the writ of error will not be dismissed on this ground. Moore v. Kelly, 109 Ga. 798 (35 S. E. 168). 2. The gravamen of the plaintiff’s complaint seems to be that certain stockholders of the corporation participated in what is called in the present day vernacular “a melon cutting,” from which he was excluded. If the plaintiff’s endeavor is to share in the fruits of a fraud perpetrated on the corporation, neither equity nor [395] law will aid in a partition of the profits of the fraud between him. and those who defrauded the corporation. Nor can he as a. minority stockholder proceed in equity for fraud against the corporation and its officers until he has made an earnest effort to obtain redress at the hands of the directors and stpckholders, or show why it could not be done or it is not reasonable to require it. Civil Code, § 1860. On the other hand, if we construe the petition as an effort by thé plaintiff to recover stock certificates which were-fraudulently issued by the corporation to the individual defendants,, the petition fails to allege facts showing the corporation’s obligation to issue to him certificates of stock, or that the individual defendants practiced any artifice upon which he acted to his hurt and injury. The plaintiff does not allege that he paid any consideration for the certificates of stock which the Slate Company issued to him. It is true that he says the company issued to him stock certificates, fully paid úp, but there is a wide difference between a‘ corporation’s issuing stock declared to be fully paid up, and the-paying for such by the person to whom the stock is issued. From the general tenor of the allegations the inference is almost indubitable that, prior to the alleged reorganization and change of name-of the- corporation, none of the capital stock had been paid in. But: be that as it may, notwithstanding the special demurrers calling-for the same, when the plaintiff amended his petition he wholly failed to set out the corporation’s charter or record showing corporate action. A record of corporate action should be made on the minutes of the corporation; and if the plaintiff was entitled to the issuance of stock because of corporate action, he should have attached so much of the corporation’s minutes as showed the existence of his demand, or explained why he could, not do so. The. main allegations which relate to the imputation of fraud in the-conduct of Lester and Morris are, that they owned an option to-purchase 80 acres of land which they promised, without consideration, to give to the corporation; that instead of doing, they paid for the land with money borrowed with the assistance of two men. who were officers of the corporation, and took title to themselves- and afterwards sold the land to the company for a large stock issue.. Admitting the plaintiff’s facts as alleged, all he charges against; these parties is that they violated a gratuitous promise to him and the orignal incorporators. Fie does not allege that he did any act [396] on the faith of this promise, to his injury or damage. Whatever view may be taken of this petition, the trial court was right in dismissing it. Judgment affirmed. All the Justices concur.