Glymont Improvement & Excursion Co. v. Toler

Robinson, C. J., delivered the opinion of the Court. ■ The Upper Glymont Improvement and Excursion Co. was incorporated in 1883, under the general incorporation law, with a capital stock of $25,000, divided into 1,000’ shares, of the par value of $25 each. The object of its incorporation was to buy a tract of land on the Potomac River, at or near Glymont, in Charles .County, about twenty miles below Washington, and to erect thereon hotels, cottages and other buildings necessary and suitable for a summer resort; ' also for the purpose of cultivating flowers, growing vegetables and agricultural products. Soon after its organization the company bought a tract of land called “Upper Glymont,” and then it bought another tract, “Lower Glymont,” the two tracts containing about one thousand acres. On the property thus purchased it has expended large sums of money in buildings and other-improvements, in order to make it an attractive summer resort. After the purchase of the Lower Glymont tract, it was deemed advisable to change the name of the company by leaving out the word “Upper,” thus making the name “The Glymont Improvement and Excursion Company;” and also to strike out the clause in the charter forbidding the Sale of intoxicating drinks on the property. And for this purpose an amended charter was prepared by Toler, the defendant, then one of the directors, and was acknowledged by him and six other corporators, as required by the Code, before the proper officer, and submitted by him to the stockholders at a special meeting, held 20th May, 1886. It does not appear that any definite action was had in re — 287 — gard to the amended charter at this meeting, but at a meeting of the directors on June ioth, of the same year, the committee on charter reported that they had submitted the amended charter to Judge Stone, one of the Judges of the Circuit Court, as required by the Code; and that he, whilst being of opinion that the amendments were in conformity with the statute, suggested it might be better to adopt a new charter, and this suggestion was concurred in by the directors. Instead, then, of amending the charter, articles of incorporation were signed by the directors for the incorporation of. “The Glymont Company,” and having been duly acknowledged by the parties signing the same, they were submitted to Judge Stone, who thereupon certified that they were in conformity with the provisions of the law authorizing the formation of said corporation; and on the 17th March, 1888, they were filed for record in the Clerk’s office of the Circuit Court for Charles County. This charter, which is called the new charter, is identical in terms and provisions with the amended charter prepared, signed, acknowledged and submitted by the defendant at the stockholders’ meeting of May 20th, and it is substantially the same as the charter of 1883, the only alterations being in the name of the company and the omission of the clause forbidding the sale of intoxicating drinks. The reason for filing new articles of incorporation, instead of an amended charter, was the fact that the whole capital stock had not been taken, and it was deemed best to avoid any trouble that might arise under the 64th sect, of Art. 23 of the Code, which provides that the capital stock of a corporation shall be paid within four years from and after its incorporation, “or such corporation may be dissolved.” After the articles of incorporation had been filed of record, a special meeting of the stockholders was called to be held April 7th, 1888, at Glymont, where the principal office of the company was located; and at this meeting, the charter, after full consideration, was adopted without a dissenting vote, more than two-thirds of the shares of stock having been voted. — 288 — And in adopting the charter it was further resolved, “ That the trustees are hereby authorized and instructed to convey the land and all its betterments and improvements to the Glymont Improvement and Excursion Company, provided said company shall assume all debts and liabilities whatsoever of the ‘ Upper Glymont Improvement and Excursion Company,’ and agree to issue to each stockholder of this company certificates of stock in the new company, equal to the amount of paid up stock owned by him in the old company.” There being only two charter members of the new company present, the meeting adjourned to meet at the branch office in Washington, on the 9th April. At this adjourned meeting, held in Washington, the directors formally organized by electing a president and other officers. The defendant was the owner of 64 shares of stock of the “ Upper Glymont Company,” and he refuses to exchange this stock for the stock of the “ Glymont Company,” because the charter of 1888, he says, has never been accepted, and the latter company has no power, therefore, to issue certificates of stock; and, secondly, because it has no right to compel him, a dissenting stockholder, to exchange his stock for the stock of that company. The acceptance of the charter is necessary, of course, to the corporate existence of every corporation, and for the reason that the corporators are not obliged to assume the responsibilities and discharge the duties imposed by the charter without their consent. It is well settled, however, that it is not necessary, even when the charter is granted by special act of the Legislature, to prove such acceptance by a formal vote of the corporators; on the contrary, it may be inferred from the exercise of corporate acts by them under the charter. In this case, however, we are not dealing with a charter granted by a special act of the Legislature, but one created under the general incorporation law. And this law provides, in the first place, that any five or more persons who may — 289 — desire to form a corporation shall make, sign, seal and acknowledge before some person competent to take the acknowledgement of deeds, a certificate in writing, in which shall be stated, &c. And then it provides that it shall be the duty of the persons executing the same, to submit it to one of the Judges of the Judicial Circuit within which the principal office shall be located, in order that he may determine whether the certificate is in conformity with the law, “ and if he shall so determine, he shall certify his said determination upon said certificate, which shall thereupon be recorded in the office of the Clerk of the Circuit Court for the county in which the principal office of said corporation shall by the terms of the certificate be located.” And then it further provides, “ that when the said certificate shall have been recorded, the persons who have signed and acknowledged the same and their successors, shall, according to the objects, purposes, articles, conditions and provisions in said instrument contained, become and be a body-politic and corporate in fact and in lazv, by the name stated in such certificate.” So, upon compliance with these provisions, the persons who have signed and acknowledged the articles of incorporation, thereby become a corporate body, by the name stated in the articles. It would be idle, under such circumstances, to require further proof that the corporators had accepted that which they had in express terms applied for, and to obtain which they had complied with all the requirements of the law. But then, it is said, there must not only be an acceptance of the charter, but the company must be organized in the State where the charter was granted; and the argument is, that inasmuch as the plaintiff company was organized by the directors in Washington on the 9th April, 1888, there is no proof of their acceptance of the charter and organization of the company in this State. To this we cannot agree. There is abundant proof throughout this record of the acceptance and organization of the company in this — 290 — 'Statdpí® deppnd'erign’ltbgjethe'robfrthe’ ’Orgáni&atíbn <M Wáblbáftgtbrí.fu Ib shows’,{that frOnf'-u;888'/dvheññhe GSéipktiy'n'fhS áh'¿¿rpOfa'ted|!' d€)WnS■feó¡,•tH'e., filing! 'Sfl this -bííKdiíbí&^gmÉM ■-bórlíófatói-s.'ah’d d-hbifesuecdssdrs bhave CXérdiSSdn'córjbofejfte rrightb'.‘Ofievei>yMndiunde®tíé-'ehaWe.í‘n<'’thattlféy haydfisSiSéd ®ertifi'ekfes f©í Ist&éfe’Jü’ódéri'bhw IséaEÍ'-1 ofi>thb;fe0iÍ!ip4ÍÍy\o tíftft théyéháve' e'xpéftde d-->itiO® fe'y, in ' -fu rtlie'r dbV'élbpaa’g Ífifidlífi'fli{p’rnViíi-g3 the prcjpgt'tylnnndrt'hát a¿bbÍ^W8li¿efód&&áísftdé& ^okvñu'álty Heñtihiob^'tká stó'dMidldins cat íGlymoátpihuthis Stóité-Hváhdibhát thé’ directors ’¡tltiis t elected nhayéi-kehtrolled -a-nd’-mahágéd áll'tlre property- and' affairs ¡of' Úh'e'1 eo'mpariyí • i." ^he’déféndkfit-'SÍkdcólídcéOntentíohyib^édúáíiy' Kuíitfeiiábfei -Wé agrée-;that ’nfeithé'ritde’diréctorS’ñO'ha'1 ítiajiobMy!bf!thé htockKó'MéfS'shdvSfthé' power -to ¡ tüak&fói1i$diHeñTM1 chátig'e's Srteth'é'.Charter; fdrdgjh'aftd* inc&hsiáténlbwSthrthe Objbiksrañél purposes ífbír- Which ritH.wákugraritéd;1''”Wfer'á^rh^'tfetutííey have hb'powefiííp'on.thfe'disSolütion1 oí] thcnoíitpariy by ‘the '■éítpii^tí'óy-oPth'értitíié liillitcdüilí'tlic'-tíhaíÉehfoViíts corporate ■ íe-ki'st'eü’CéWo S'éll Its .ásséts'-at'a'fí-xéd valúe ''t'd'''ánbth'erA''é'óPs. t poration, and compel the shareholders to-tafeé''¿tOfekil'ft'J that company-it a-'valuation ' fisíéd ¡by¡ thatuébítípanye MiAnd-we ag¥cc-;'tdói,<-!tha!t>itheyd.hkyg!ttbvpowOr I by fehohyow-ffikcidt'o terriíitiát'é!>the'-!ékistrfncéíof th'CCbrpx)ratibii.y'aiid'i'hCii''tra®sifbr its-property ño ¡¿’COrpótatiotíbín^ kifbther. iStatépaiid «tallé íá payment íherefonátockin th& foréigkcbtpb¥ktion.o'!i!ipnd dt ib üflneceásáry'''therefor©? to consider thc^eyorkl cksdsteTidd ¡Oñ day ¡th©scotíhséfofobldhév-dfefCfídaát!;’'Ínysúp]il0fé'.'ófnt?Kéfeé principles. Mason v. Pewabic Mining Co., 133.®!SÚ^C")'1; ^Féíftó?5vv Pafcfeá8{í3tinÍof'; :¡ppotM'ivghaim^'': MóAfidié^ 6 'Síun. .3'3 6 y Mofimíg&o (r»djsh;¡,u¿(.r\5í.ují.>Itcis •.'áüfficibiitJ'tosisayu'thkt these cases can'd1 then principles on'.’which'-ítheyí Wereide'Gi'déd 'hávesbútdittle'pifi ahy-v^pplicatibhctp this casebrnnarm iudi 5'inNb.fuH'dadfentkl dhhngik <hrave>hechí'-iftkdeúiñ'itfiéoeh4ftíér bf- «Iv883!u'¡The 'Objects1'' add '-purposes'., ófcdhato ch&rter<>rth¿ property,-the kapit'al stbckíand'thé' 'number''and--Valúe ¡ofifhfe shares,''-a're'kil itfhédsa'ífieihis dn'.'the'cHarteirofi l‘S83h theonly 'cfeangés'íorraiteratiohs being; the ¡substitution¡of ®.01ymont¡’t — 291 — for “ Upper Glymont'' and the omission of the clause forbidding the sale of intoxicating drinks. Nor has there been a dissolution of the company, in the sense in which that term is used, either by the expiration of the time fixed in its charter, or from any other cause, nor has there been a sale of its property to another and foreign corporation in exchange for the stock of that corporation. But even conceding, for the purposes of this case, that the charter of x888 is to be considered as a new charter in every sense, and that it differs fundamentally from the original charter, the proof shows beyond question, it seems to us, that the defendant, by his own acts and conduct, must be held as having acquiesced in the acceptance of the new charter, and this, too, with full knowledge that it had been accepted by the stockholders at the April meeting in 1888, without a dissenting voice, and upon the express condition that the new company should assume the debts of the old company, and issue certificates of stock in lieu of the stock held by the shareholders in the old company — the consideration for which being the transfer of the property from the old to the new company. And although the defendant has refused to exchange his stock, the proof shows that such refusal was not because he had any objections to the charter itself, or its acceptance, for it is identical in terms and provisions with the amended charter which he himself had prepared and signed, but because he objected personally to some of the directors and officers, and also to the management of the company. To more than one witness he expressed his willingness to exchange his stock, provided he could succeed in electing a new board of directors, and when his last effort, in April, 1891, to change the management failed, he wrote to the plaintiff insisting that it should buy his stock at twenty dollars per share, and if it refused he threatened all this unprofitable and, as it seems to us, unnecessary litigation. All this, the proof, we think, fully sustains. The witnesses on the part of the plaintiff, its president, secretary, directors and others, all testify that — 292 — the defendant not only attended the stockholders’ meeting, held for the purpose of considering the best means of promoting the interests of the company, but took an active part in the discussions. And though he criticised and found fault with the management, he never, either in these discussions or in private conversation with these witnesses, with one of whom, at least — Mr. Bigelow — he was on intimate terms, made any objection to the charter or its acceptance at the stockholders’ meeting in 1888. And the proof further shows, that prior to the April election, 1891, for directors, the defendant was active in getting up a ticket in opposition to their existing board; that he suggested to other stockholders the necessity of getting proxies, and contributed to the expense of printing these proxies, and after they had been obtained, he, together with other stockholders, tabulated the vote in order to ascertain whether they had a majority of the shares of stock. And when the election took place at Glymont he attended the meeting, took part in the discussion, was present when the proxies were voted, and afterwards, when the vote was announced, he insisted that the proxies had not been properly counted. This testimony is substantially corroborated by Messrs. Metzger and Porter, the defendant’s own witnesses. Mr. Metzger says the defendant attended some of the meetings of the stockholders in Washington, and took part in the discussions, and urged the members to come together, and show more interest in the company, and change the trustees, or file a bill in equity to make the old officers account for their mismanagement. That prior to the annual election in 1891, witness went to defendant’s house, and there they made a tabulation of the proxies which had been obtained, in order to ascertain whether they had votes enough to elect a new board of directors, and that the defendant attended the April election and was present when the votes were counted. That in his conversations with the defendant, his objections to the exchange of his stock were on the ground of the management of the — 293 — company and his opposition personally to some of the directors and officers, and that he had expressed his willingness to make the exchange, provided he could succeed in electing a different board. In addition to this oral testimony, the defendant, in a letter to Mr. Kefauver, dated Jan. 21st, 1889, says: “I have just attended a large gathering of the stockholders of the Glymont Company,” and “as a fellow stockholder,” wants to know whether Mr. Kefauver intends to press the collection of his mortgage of $8,000 on the property belonging to the Glymont Company, as was announced at “ our meeting." Mr. Kefauver was at that time a stockholder in the plaintiff company, and defendant addresses him as a “fellow stockholder',' and the meeting which he had just attended was a meeting of the stockholders of that company, and which he refers to as “ our meeting." And in a subsequent letter, of June 10th, 1891, after the April election, at which he had failed in turning out the old directors, addressed to the plaintiff, the defendant insists that the company shall buy his stock at twenty dollars per share, or take the consequences of an expensive litigation and the exposure of the management of the affairs of the company. In answer to all this, the defendant, whilst admitting that he had attended the stockholders’ meetings and had taken part in the discussions, says that he did so at the request of the stockholders and for the purpose of protecting his own interests as a stockholder in the old company, and that he never assented to or acquiesced in the acceptance of the charter of 1888. But his claims as a dissenting stockholder are not to be adjudged and determined by his mental reservations, but by his own acts and conduct, and by these acts he must be considered and treated as having assented to the acceptance of the new charter by the stockholders, and with the knowledge that such acceptance was based upon the condition that the plaintiff should issue certificates of stock to the shareholders under the charter of 1888, in lieu of the stock held by them. And this refusal to exchange — 294 — his stock was not because he had any objections to the new charter, which is identical in its terms and provisions with the amended charter which he himself had prepared and submitted to the stockholders in 1886. So there is no groünd' upon which the defendant’s contention can be sustained. (Decided December 18th, 1894.) Decree reversed and cause remanded in order that a decree may be passed as prayed.