Weiland v. Hogan

Brooke, J. (after stating'the facts). The contention is made on behalf of appellants that this by-law is void for various enumerated reasons. The authorities upon this point are not uniform, and though the [631] question is one of interest, we have found it unnecessary to pass upon it in this case, for the reason that, whether valid or void, considered strictly as a by-law, it can be sustained as an agreement entered into between all the parties in interest. It should be noted that we are not called upon here to determine the effect of such a by-law upon a stockholder who had not given his assent to its adoption, or upon a transferee of stock, who in good faith, for value, and without notice, had become an owner of shares in the corporation. We are now dealing only with stockholders who themselves, voluntarily and for their own benefit and protection, enacted the by-law. A review of the authorities is unnecessary, but attention is directed to the following: New England Trust Col v. Abbott, 162 Mass. 148 (38 N. E. 432, 27 L. R. A. 271); Barrett v. King, 181 Mass. 476 (63 N. E. 934); Nicholson v. Brewing Co., 82 Ohio St. 94 (91 N. E. 991, 137 Am. St. Rep. 764, 19 Am. & Eng. Ann. Cas. 699); Carter v. Oil Co., 182 Pa. 551 (38 Atl. 571, 39 L. R. A. 100); In re Lindsay’s Estate, 210 Pa. 224 (59 Atl. 1074); Garrett v. Lawn Mower Co., 39 Pa. Super. Ct. 78. For further authorities upon the subject, see 26 Am. & Eng. Enc. Law (2d Ed.), p. 855, and notes; 10 Cyc. p. 358, and cases cited; Id., p. 579; 3 Clark & Marshall on Private Corporations, p. 1728 et seq. Of the appellants in this case -it may be said as was said in the case of Clark v. Machine Co., 151 Mich. 416 (115 N. W. 416): “The stockholders are not in position to complain, for they were all willing parties to the transaction and are therefore estopped to deny its validity” (citing cases). We are of the opinion that the decree is not open to criticism. By its terms appellants are required only to sell to complainants their proportionate share of [632] the Walker and Rivard stock, but may at their option dispose of it all. If they so elect and complainants decline to take it all, they may keep it all. We can perceive nothing unfair in these terms. The judgment is therefore affirmed, with costs. Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.