Lien v. Savings, Loan, & Trust Co.

Bronson, J. This is an action for mandamus by a stockholder to compel the inspection of corporate records and books. The defendants have appealed from the judgment of the trial court awarding a peremptory writ. The facts are■ substantially as follows: The plaintiff is fifty-six years old. He is a Norwegian, neither understanding nor reading English. He is a single man, and for the last ten years has worked out, earning on an average of $100 to $125 per year. In September, 1916, he bought thirteen shares of stock in the defendant company of the par value of $100 per share, paying $120 per share. Later he bought thirteen shares more. Ever since he owned the stock he has received 12 per cent dividends January 1st of each .year. His own attorney in the record.terms his client to be a subnormal specimen. The plaintiff went to the annual stockholders’ meeting in January, 1917 and 1918, and to a special stockholders’ meeting in October, 1917. He testifies that at one of these meetings when they were voting to change the name he got the impression that the stock was not very good. He does not remember clearly. He became afraid that he was going to lose his money. In March or April, 1918, he went to see Attorney Nestos. He told his attorney that he wanted $3,120 for his stock. Nestos saw the president of the company and inquired — 264 — concerning the circumstances under which the stock was sold to the plaintiff. This was explained, and the president in addition offered to loan the plaintiff up to the par value of the stock. Nestos afterwards advised the president that the plaintiff went home satisfied. Since February 10, 1918, the plaintiff has worked for one Peter Hall. Plaintiff had Peter Hall write a letter to the president about the stock. Later when the plaintiff wanted to see someone in Minot about the stock, Hall sent him to one Rasmussen. He saw Rasmussen. He went with Hall to see an attorney, his present counsel. Mr. Hall prepared a power of attorney in English, translated it to the plaintiff, and plaintiff signed it. This power of attorney authorized his attorneys, his present counsel, to handle for him his certificates of stock, and to examine the books of the company if they deemed it advisable, and to bring such action as they deemed proper to protect his interests. One of such counsel testifies that on June 29, 1918, he went to defendants’ offices, saw the president, Mr. Toumans, and advised him that he had been employed by plaintiff to sell to the president the stock if he desired to buy, or otherwise, to examine the books of the company. He further testifies that Toumans used rough language towards him, refused to either buy the stock or permit examination of the books or records of the corporation. Thereafter he made a written demand to examine, with a stenographer and accountant, all the record's, books, and assets of the corporation, and upon refusal of the corporation this action was instituted by the issuance of an alternative writ of mandamus. There is testimony by the plaintiff that he desires to have the books investigated. There is also testimony by his attorney that he has no improper motive in desiring to make such investigation. However, it appears in the evidence that plaintiff’s attorney suggested the idea of investigating the books to the plaintiff; that his attorney first talked about the matter 'with Rasmussen; that said Rasmussen is president of the First National Bank of Carpió; that the president of the defendant bank had litigation with Rasmussen in reference to Savings Deposit Bank of Minot, in which Toumans was formerly interested; that Toumans-is also in a new bank at Carpió, a competitor of the Bank of Rasmussen; that the relation between such parties is far from friendly. Hpon cross-examination the plaintiff admits that he wants to sell his stock; that he wants $3,120 for it; that he never tried to sell it to anyone except — 265 — to Youmans; that he never made any complaint to Youmans that the stock was not worth the money he paid for it; that he never tried to borrow any money from the company or Youmans on it, and that he himself never went to Youmans and demanded that he buy the stock. The record discloses, pursuant to the testimony of Youmans, that at a previous time the attorney for the plaintiff handled some other stock against the company in a similar way; that he came to Youmans with, the threat that if Youmans did not buy that stock he would examine the assets to the last and make all kinds of trouble and unnecessary expense and trouble, that he would bring his stenographers there; that such attorney made threats every time he came to the office that he was going to come in with his attorneys and put the defendants’ company to much expense. On rebuttal this attorney states that he made no threats that he knew of, although he admits that, on such previous occasion, he offered to sell such stock to Youmans, which Youmans said he could not take. That then he made a demand to examine the books, which request •was granted and arrangements made therefor. That after Youmans concluded to buy the stock, he, Youmans, inquired of him why he wanted to examine the books, and he replied that he figured that You-mans did not want his books examined. The president of the defendant company testifies that he is willing to permit the plaintiff in any manner to examine the books or papers and also any attorney for the plaintiff, if his attitude and behavior were satisfactory to him. That it was the threats and intimidation. that occasioned the action taken. This action came to trial in November, 1918, and, in January, 1919, the trial court made findings in favor of the plaintiff, pursuant to which a peremptory writ of mandamus was entered requiring the appellants to submit to an examination of all their records, books, and assets by the plaintiff, his counsel herein, or such other attorney as plaintiff may hereafter select, together with the assistance of a stenographer and accountant. The appellants have assigned some ten specifications of error. These are deemed to be without merit excepting as they concern the statutory right of a stockholder to examine the books and records of a corporation, and the right of the court in a mandamus action to exercise an equitable discretion where improper motives are disclosed in the record. — 266 — This appeal is not triable de novo. State ex rel. Bickford v. Fabrick, 16 N. D. 94, 112 N. W. 74. The usual presumption is accorded that the findings of the trial court are correct. Nevertheless, proceedings to secure a writ of mandamus in this state are special proceedings. Chap. 42 (Comp. Laws 1913, §§ 8457-8469). Although, historically and generally, mandamus is deemed to be a law action, yet, it is to be exercised upon equitable principles. 26 Cyc. 145. Every mandamus, in a manner seeks the aid of equity. It ordinarily will issue where there exists no adequate remedy at law. As a special proceeding it is tried to the court, and not to a jury. There is manifest reason why the court in the exercise of this writ should search the entire conscience of the transaction. It is evident, therefore, that the same conclusiveness should not attach to the findings of the trial court in such special proceeding that do attach to such findings, where a law action is tried to the court, a jury being waived. The trial court, in its findings, determined that no improper motives for the inspection of the books and records were shown or established, and, in a memorandum opinion, stated that it is immaterial what the motive may be where the stockholder seeks to use the right granted to him by the statute. The respondent cites some authorities to the effect that the right to the writ is not discretionary. Likewise, Schmidt v. Anderson, 29 N. D. 262, 150 N. W. 871, is cited, wherein it is directly stated that it is immaterial if the stockholder desires to inspect the books in the interest of a rival corporation, or to aid him in securing business which might otherwise go to a corporation whose books he seeks to inspect, upon the ground that the statute (Comp. Laws 1913, § 4560) is mandatory, and where the right is shown it is absolute. As far as the language in such case seeks to assert or imply that in a special proceeding of mandamus, no equitable discretion exists, and that the court must issue the writ like a mere adding machine, upon the showing that a person is a stockholder and desires to malve inspection, no matter what his motives may be, the case should be and is hereby expressly overruled. See Eaton v. Manter, 114 Me. 259, 95 Atl. 948; State ex rel. Humphrey v. Monida & Y. Stage Co. 110 Minn. 193, 124 N. W. 971, 125 N. W. 676; notes in 45 L.R.A. 446; 20 L.R.A.(N.S.) 185; 42 L.R.A.(N.S.) 332; and 107 Am. St. Rep. 674. It is shocking to the American sense — 267 — of law and justice that a statutory right, through the protecting and directing arm of the law, may be made an instrumentality of perpetrating a wrong. Section 4560, Comp. Laws 1913, grants to a stockholder full right to inspect the records, books, and all the business transactions of his corporation. By such inspection he may learn, or even compile and preserve (Comp. Laws 1913, § 1016), all of its business and trade secrets. It is a wholly beneficial law serving to protect and apprise stockholders concerning their property rights and guarding against wrongdoing, when properly administered and interpreted. No court should presume that this law was enacted with the legislative intent to permit one, by its use, to perpetrate a wrong upon another or to act as a license to a stockholder to use this right for the purpose of injuring and destroying his own corporation and to benefit or promote a rival corporation. Laws are presumed to be enacted for the protection of society and persons in their personal and property rights. There is no presumption that such laws can or may be used for purposes of accomplishing or perpetrating a wrong. A consideration of the evidence in ihis record reveals this outstanding feature permeating the entire case of the plaintiff; namely, that the plaintiff desires to sell his stock to the defendant corporation or its president, and that if he cannot so sell, he is disposed to occasion expense and trouble by a vast, laborious examination of all of the assets of the defendant corporation. The defendants are willing, and so assert, in the record, to permit the plaintiff himself to examine the books in any manner, or to permit any attorney that is satisfactory to so do. It is further apparent in this record that this action and this method of procedure has been suggested, initiated, and maintained by the attorney for the plaintiff. He states that his client is subnormal. He is desirous himself to investigate these books. Furthermore, it appears that this very attorney, on a previous occasion, used this statutory right as a means, at least indirectly, of compelling the defendant corporation to buy the stock of his client in order to avoid a laborious investigation. There is no claim in the record that the defendant company is insolvent; that its officers have been guilty of fraud, deception, or improper acts. There is, further, nothing in the record that discloses any refusal whatsoever to give to the plaintiff himself full information concerning the corporation; that shows any dissatisfaction concerning — 268 — the plaintiff’s stock excepting his mere suspicion. The attorney for the plaintiff states his purpose by testimony proceeding from himself that he sought to sell the stock of his client to' this company, and upon their refusal to buy he intended to make a complete investigation and to bring a stenographer and an accountant so to do. The attorney justifies this conduct; he asserts that it is wholly proper for him so to do. It is now necessary for this court to criticize this conduct in no unmeasured terms. The law profession has a code of ethics not excelled by any other profession. It is the duty of the court, as well as the attorneys, who are officers of the courts, to exemplify, by practice, as well as by precept, the high ethics of' the profession. It should be unnecessary to state that it is improper for an officer of this court, an attorney, to seek to compel the sale of the stock of his client to a corporation for the benefit of himself or his client, upon the threat, express or implied, to use himself the statutory right of his client to force such sale and to occasion embarrassment or expense to the corporation. Such conduct is not only repugnant to the high sense of a lawyer’s duty in enforcing the rights of his client upon the ethical grounds, but is repugnant to the sense of fair dealings between man and man. See A. B. A. Canons Ethics, §§ 19-30, 794, 2 C. L. 1913. Upon this record, such attorney for the plaintiff is not entitled to the aid of the court through a writ of mandamus permitting him and his assistants to examine and inspect completely all of the records, books, and assets of the defendant corporation. The trial court erred accordingly in so directing. The appellants have conceded in the record their willingness to have the plaintiff or any suitable party that he may desire to assist, to examine in any manner the books and records. The law grants this right to the plaintiff ; it is conceded by the appellants. The court will enforce that right. This appeal therefore practically concerns such attorney, his conduct, and his insistence that he personally is entitled to make such inspection. It would seem that this appeal might well have been avoided, after the appellants made the concession in the record, by eliminating the personal desire of the attorney to make such examination. It is accordingly ordered that the peremptory writ of mandamus herein be vacated, with directions to issue a new peremptory writ, without costs, permitting the plaintiff, and any person or persons necessary to assist him, suitable to the parties, to make inspection of any and all — 269 — records, books, and business transactions of the defendant company; and in the event that the parties are unable to agree upon a person or persons necessary to assist such plaintiff, the court shall appoint some disinterested person or persons, who will be obligated by the court not to divulge or give any information secured by such examination except to the plaintiff; such inspection to be reasonably conducted within business hours as the court may designate. The appellants will recover the costs of this appeal. Grace, J., concurs.