Philad. & R. R. v. Love

Opinion, Mr. Justice Sterrett : As was well said by the learned judge of the Common Pleas in disposing of the plausible but unsound defence that was interposed in this case: “ The plaintiff cannot be deprived of his rights by the action of a board of which he is a member. It would be detrimental frequently to the success of such a plan as this, if not impracticable, that a dissenting member of the board should, in order to establish his individual rights as a non-assenting holder, be expected to publish the fact of his dissent to the general public.” Such a course would doubtless have been prejudicial to the success of plaintiff in error’s scheme, and distasteful to its promoters. The proposition submitted by the reconstruction trustees of the plaintiff in error was addressed to the stockholders and bondholders of the Schuylkill Navigation Company individually, and not to the corporation itself. The acceptance or re [498] jection of the proposition depended on the personal action of each share- or bondholder. The board of managers had no power in the premises. The proposition was binding on the shareholders and bondholders only so far as it was accepted by them in their individual capacity, and their respective holdings' deposited for exchange on the terms proposed; and not even then, unless, in the judgment of the reconstruction trustees, sufficient stock and securities were received to justify them in carrying out the scheme. Plaintiff below neither did nor omitted to do anything that can by any possibility have the effect of estopping him from asserting his claim under either of the securities which he neither deposited nor agreed to deposit for exchange and settlement, according to the terms of the proposition above referred to. The court below was clearly right in entering judgment for want of a sufficient affidavit of defence. Judgment affirmed.