Whitaker v. Whitaker Iron Co.

DAYTON, District Judge (after stating the facts as above). The very earnest insistence of counsel for plaintiffs that their bills herein should be entertained, and the just as earnest contention of counsel for defendants that they should be dismissed, not alone on jurisdictional grounds, but for want of equity, has caused me to make the foregoing statement of the facts and pleadings more extended than was possibly necessary. Upon a final analysis it is clear that plaintiffs, as alleged stockholders, or persons upon whom shares of stock have devolved by operation of law, are seeking redress upon behalf of the corporation, for alleged fraudulent mismanagement, misapplication, and conversion of the corporation’s property and assets, by its officers, directors, and majority holding stockholders. The basis of fact for these serious charges practically reduces itself to this: The Wheeling Corrugating Company in 1900, 16 years ago, sold and conveyed its plant to the Whitaker Iron Company for $250,000. The Iron Company held and operated this plant, so purchased, for 4 years, and then, in 1904, by a “back-dated” deed, recon-veyed it to the Corrugating Company, and in that year both companies were merged in the Whitaker-Glessner Company. Based upon these admitted facts, the charges of fraud, misapplication, and conversion are made to the effect that, during the four years’ operation by the Iron Company of thd Corrugating Company, the profits earned by the latter were large and were not accounted for to the Iron Company; that material of the Iron Company was used and not accounted for to it; that the conveyance back to the Corrugating Company was — 990 — without consideration; and that, by the merger with the Whitaker-Glessner Company, other profits, etc., rightly due the Iron Company, were diverted by the individual defendants or some of them. It is clearly intended to be a “stockholder’s bill,” as defined by equity rule 27, and must meet its requirements. Before, however, discussing this phase of the case, I think it well to consider some of the other matters arising upon the several motions of defendants to dismiss, strike from the files, and require further and better particulars. [1] It is insisted that none of these bills comply with new equity rulé 25 (198 Fed. xxv, 115 C. C. A. xxv), which taires the place of former rules 20, 21, 22, 23, and 24. Construing this rule in State of Maine Lumber Co. v. Kingfield Co. (D. C.) 218 Fed. 902, Judge Thomas holds that, where plaintiffs set forth that they are “acting, not only in behalf of themselves, but also in behalf of such other creditors of and claimants against the defendants,” without more information, without setting forth, the names, citizenship, and residence of such parties, the bill violates this rule, and can be dismissed by the court on its own motion, citing Florida C. & P. R. R. Co. v. Bell, 176 U. S. 321, at page 325, 20 Sup. Ct. 399, 44 L. Ed. 486. This cause is brought by plaintiffs “in their own behalf and for the benefit and in behalf of the defendant Whitaker Iron Company and its stockholders and all parties in interest in like situation with themselves.” The Iron Company is a West Virginia corporation, and a reasonable inference may be drawn that some of its stockholders, in whose interest and behalf this suit is brought, as set forth in the above allegation of the bill, are citizens of this state. Jurisdiction in federal courts, where no federal question is raised, will never be presumed, but must be clearly shown. .If the suit is brought in the interest of others, their names and residences should be alleged, so that there may be no' question that resident interested parties may not by collusion secure jurisdiction by nonresident representation. [2] Defendants’ counsel go farther, and insist that want of diversity of citizenship is affirmatively shown, by reason of the'fact that the suit is brought on behalf of the Iron Company, an admitted West Virginia corporation; that it should therefore be properly aligned as a plaintiff, and, if so, diversity of citizenship would be destroyed, a simple condition thereby arising of a West Virginia corporation suing its West Virginia officers and stockholders. This contention is not tenable in this case. Street, in his most excellent work on Federal Equity Practice (section 562), disposes of it in this language: . “Inasmuch, as these suits are always technically based on a right of action primarily vested in the corporation itself, it has been suggested that, in theory, the corporation ought always to be treated as being in the same right with the actual plaintiff stockholder. But this is untenable. The true rule is apparently found in the proposition that in a suit in equity, instituted by a stockholder in his own name, but upon a right of action existing in his corporation, the stockholder’s corporation will be aligned with the defendants whenever the officers or persons controlling the corporation are shown to be opposed to the object sought by the complaining stockholder, and when such opposition does not appear the stockholder’s corporation will be aligned with the complainant in the Suit. In other words, it is not so much the actual interest in the fruits of the suit that determines the alignment of the par — 991 — ties as it is the position of the corporation as shown in the record” — citing Greenwood v. Freight Co., 105 U. S. 13, 26 L. Ed. 961; New Jersey Cent. R. Co. v. Mills, 113 U. S. 249, 5 Sup. Ct. 456, 28 L. Ed. 949; Groel v. United Electric Co. (C. C.) 132 Eed. 252; Hutton v. Joseph Bancroft & Sons Co. (C. C.) 77 Fed. 481; and De Neufville v. N. Y., etc., R. Co., 81 Fed. 10, 26 C. C. A. 306, but the last with criticism. Defendants’ counsel further insist that plaintiffs’ bills do not meet the requirements of rule 27 as construed by the Supreme Court in Wathen v. Jackson Oil Co., 235 U. S. 635, 35 Sup. Ct. 225, 59 L. Ed. 395. Confining this objection solely to the verification of'the bills and the allegations thereof as to plaintiffs’ efforts to secure action by the corporation itself, I am inclined to hold this rule sufficiently complied with. Its requirement as regards their stock holdings I propose to consider later on. [3] By the making of Joseph Coudon, of Maryland, individually, as “executor trustee” of George P. Whitaker, deceased, and as an officer or director of the Whitaker Iron Company, a defendant to the amended bill, it is insisted equity rule 28 has been violated, inasmuch as his (Coudon’s) interest was known to plaintiffs when they filed the original bill, and Ross v. Carpenter, Fed. Cas. No. 12,072, is cited. This case, however, was construing rule 29 of the rules of 1842 (subsequently promulgated as No. 29 in the rules of 1866-1911) which provided that a bill was not amendable after replication filed, unless the plaintiff shows that “the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced.” This old rule has been entirely superseded by No. 19 of the new rules, which leaves the allowance of amendment wholly -to the discretion of the court. I would not be inclined to sustain a dismissal on this ground alone. It is contended further, in this particular, that in making Coudon a party plaintiffs ask of the court that for which there is no law, as he does not reside in this district, does not appear to be within it, and there is no provision by which he can be summoned to appear and make defense. This contention is sound, but subject to this modification : That while he may not appear to be in the district, yet it does not follow that he may not be found in the district within the time that summons to appear is allowed to run before made returnable by the marshal to the clerk’s office. Therefore, if I regarded Coudon as a necessary party, and the right to entertain the cause dependent upon his being served, I would not be inclined to dismiss until process had been issued and returned “not found.” [4, 5] Defendants further contend that, by setting up in the amended bill as a cause of action the making of the deed by the Corrugating Company to the Whitaker-Glessner Company, and asking its cancellation: (a) They are making an essential change in the character and object of the original suit, thereby violating rulés 19 and 34; and (b) they are seeking to assert a 'liability against these two corporation defendants alone, and not against all of the material defendants to the original suit, in violation of rule 26. I think both of these contentions sound. I do not think .the remedy, however, would extend beyond a refusal to consider such allegations and to grant relief, because — 992 — thereof. So far as our American equity practice is concerned, some new and very interesting questions arise upon defendants’ motion for further and better particulars, based upon rule 20, which is a new one, adopted from tire English one (Order XIX, rule 7), and reads as follows: “A further and better statement of the nature of the claim or defense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just.” It is apparent at once that resort to this rule may very materially aid a litigant in ascertaining what case he has to< meet and prevent him from being taken by surprise at the trial. It may be invoked also for the purpose of tying down the party required to give such statement to the actual case he proposes to make, stripped of all otherwise extraneous matters inferable from the general character of his pleading. But the appeal tO' it here is for a much broader purpose. The defendants substantially assert that plaintiffs in these bills have made general charges of fraud, while if they had stated in detail the ultimate facts, such facts would disclose: (a) That the Iron Company, in acquiring the Corrugating Company, employed two methods, one by having the plant conveyed, the other by having the stockholders sell and transfer to it their stock holdings, whereby it became the holder of the legal title to the physical plant and property of the Corrugating Company, and at the same time became the owner of all of its capital stock, and for both paid one consideration, $250,000 in issues of its own stock; (b) that for a period of four years the two companies operated independently of each other, as they had done before, and the earnings of the Corrugating Company were allowed to accumrt-late; (c) that when the Whitaker-Glessner Company was formed, in 1904, the Iron Company then sold to it all this capital stock of the Corrugating Company, and, to give such stock the value it was: entitled to, made reconveyance to the Corrugating Company of the plant for the same consideration it had paid for it,'and received from the Whitaker-Glessner Company, for this stock of the Corrugating Company, 16,760 shares, of the par value of $1,676,000, of the Whitaker-Glessner Company’s stock, of'which stock, so received, the Iron Company distributed to its individual stockholders 15,000 shares, of which fhe estate of George P. Whitaker was entitled to and received 1,500; that (d) under court proceedings, in Maryland, where the “executor trustee” of this estate qualified and resided, a distribution in kind was ordered in 1912 of these 1,500 shares, and some other shares which the estate had received, whereby plaintiff Martha E. Whitaker, as executrix, received 282 shares, and the plaintiff Ruth E. Whitaker received 94 shares, these being the full distributive share each was entitled’to; apd, finally, (e) that in July, 1913, both these plaintiffs sold these shares, so allotted to thém, by written contract, to Rouis Gutman and others. To support these assertions, they tender the verified minutes and financial statements of these companies and a copy of the sale contract, of which two originals were executed and each side may be — 993 — presumed to possess one, to the filing of all which the plaintiffs object and move to strike out. Is the scope of this equity rule 20 broad enough to permit defendants to bring in the ultimate facts in this way, and seek a speedy dismissal of the suit as a vexatious one, or must they set-up these matters in an answer, and await the delay of a regular hearing? So far as I can discover, no decisive construction of the full scope of this rule has been as yet rendered by the courts of this country. Adopted, as it has been, from the English rules, the construction given by the courts of that country must be considered as strongly persuasive. The eighth edition of the old standard English work, Daniell’s Chancery Practice (volume 1, at pages 328, 329), discusses the matter, cites authorities, and strongly intimates that the scope of the rule may be as broad as here contended for, always, however, subject to the discretion of the court as to whether particulars shah precede discovery, or discovery precede particulars. It would seem that such a conclusion is just and right; that while such a broad scope to the rule, in most cases, is.not required and should not be allowed, yet in some exceptional ones it should be, in order that injury may not be done and justice may be promoted. I am constrained to believe this case to be such exceptional one, for these reasons: First — It is to be borne in mind that this is alleged to be a stockholder’s suit. The law is well settled, by a vast number of decisions, that such suit can be brought for only a few purposes; that the grievance must be clearly shown to be real and not simulated, calculated to cause irrreparable injury, and that every means of redress within the corporation itself has been exhausted, or clearly shown to be unnecessary and futile by reason of hostile control. In the absence of actual fraud, or a breach of trust or duty, courts of equity will never entertain these bills for the purpose of questioning the wisdom or lack of wisdom of sales and transfers of corporate property regularly authorized by the company’s stockholders and consummated by its directors, at the instance of minority stockholders asserting that better sales could be secured or that better business policy dictated such sales should not be made. In all these cases, as said by Mr. Justice Wayne, in the leading case of Dodge v. Woolsey, 18 How. 331, 15 L. Ed. 401: “It is obvious, from tbis rule, that the circumstances of each case must determine the jurisdiction of! a court of equity to give the relief sought” — approved in Hawes v. Oakland, 104 U. S. 450, 26 L. Ed. 827. When it is considered what injury may, in many instances, be done to the reputation of a going and solvent corporation by reason of having its management assailed by vexatious suits of this character at the instance of minority stockholders, ■ it seems to me to inevitably follow that, before entertaining such a bill, a chancellor should carefully and cautiously investigate the circumstances, and that this rule 20 may be beneficently given its broadest scope to enable him to promptly do so. [6] Second — In this case the bills clearly disclose that the plaintiffs had no individual right to representation and to participate as stockholders in the corporation at the time the acts complained of were — 994 — consummated. It is admitted that whatever interest they had at that time was solely as heirs and distributees of George P. Whitaker, whose will vested all such interest in a trustee fully vested with power to represent such interest. • No other stockholder, at the time the transfers were made, or for that matter since, has joined them in their complaint or signified any dissatisfaction over the actions taken. It is also clearly apparent from these bills that these plaintiffs profess to have no definite knowledge of the practical effects of the transfers complained of, or of the amounts that they charge the managing officers to have fraudulently realized therefrom. In fact, they are careful to make all these charges of fraudulent misapplication and misappropriation upon information and belief only, and they pray very specifically for discovery from the parties themselves, to the extent of asking: “That said designated defendants, and the legal representatives thereof, be required to set forth a complete list and description of every date, book, account, record, and writing of whatsoever nature relating to or connected with the aforesaid matters, or any of them, which now are or ever were in their possession or control, or state where same can be found, if removed therefrom, and deposit the same in the office of the clerk of this court for inspection.” Now that the defendants have substantially complied with this prayer, I am not inclined either to reject or refuse to consider these records at the instance of these plaintiffs so asking their production ; and in this condition of things I am constrained to believe that only a very few facts drawn from these records will be necessary to show that plaintiffs’ charges are groundless and they have no standing in equity. The bill charges that the Iron Company bought the. Corrugating Company on September 17, 1900, for $250,000, and that on January 21, 1904, some three years and four months thereafter, the Iron Company “conveyed its West Virginia properties to the former company (Whitaker-Glessner) for a consideration of 16,760 shares of the lattter’s capital stock, par value $1,676,000.” These records show the fact to be that the Iron Company sold to the Whitaker-Glessner Company the capital stock of the Corrugating Company alone for this price of 16,760 shares, par valu$ $1,676,000, and that 15,-000'of these shares were distributed in kind to Geo. P. Whitaker’s estate, from which plaintiff Martha E. Whitaker, executrix, received 282 shares, and plaintiff Ruth E. Whitaker 94 shares. The contract filed shows that they have sold thesé shares to Gutman and his associates for $115 per share. Taking the facts admitted by the bill, and supplement them with the few above stated from these supplied records, it is apparent that these officers, directors, and controlling stockholders, so bitterly charged with fraud, mismanagement, and corruption, in fact secured by purchase for their corporation, charged to have been defrauded in the premises, the Corrugating Company for $250,-000, and in less than three years and a half thereafter sold it for more than six times the price given for it, taking in payment stock at par which in fact was worth and was actually sold by these plaintiffs at an advance of $15 on the $100 par value. This purchase and sale of the Corrugating Company, it is' to be borne in mind, was consummated — 995 — more than a decade ago, when there were no unusual business conditions, such as now exist, to advance prices for such properties. Comment is hardly necessary. It is reasonable to infer, I think, that a good many corporation stockholders in this country would be really delighted to be “defrauded” in this way. Third- — It is well settled that any minority stockholder seeking redress must act promptly. Laches in such matters should always put a chancellor upon guard, and cause him to more carefully ascertain the circumstances and facts before assuming jurisdiction in the premises. Here more than 16 years have elapsed since the purchase was made of the Corrugating Company, more than 12 since the “backdated reconveyance” and the sale to the Whitaker-Glessner Company was made, and more than 2 years elapsed, after plaintiffs sold their stock, before they instituted this suit. [7] In the memorandum opinion heretofore filed, I expressed doubt as to whether plaintiffs are entitled to be considered stockholders of the Whitaker Iron Company. I then held that the determination of that question must depend largely upon the terms of George P. Whitaker’s will, which was not before me, and upon whether or not plaintiffs held, by any other independent title, shares of stock'in the Iron Company. For this reason, I required the supplemental bill or statement to be filed by plaintiffs touching these two points. This supplement discloses that plaintiffs hold no stock other than as distributees of George P. Whitaker’s estate, which they claim has devolved by law upon them. Whether this is so or not must depend upon the construction to be given the Whitaker will. An authenticated copy of it is not yet filed in the cause, but what purports to be an unauthenticated copy of it is presented by plaintiffs, which seems to be conceded by defendants to be a true copy. From it, it is clear that testator first directed his stock in the Iron Company, and other personalty to be held in trust for the benefit of his widow and upon her death to go into his residuary estate, which residuary estate was to be divided equally between his five children, but advancements made to and debts owing from these children were to be ascertained from his books and accounted for by each in the distribution. He then adds: “My sons Henry O. Whitaker and Cecil N. Whitaker being dead, the share of Henry C. I hereby direct to be paid and distributed to his children, Carrie Whitaker and George P. Whitaker, Jr., share and share alike.” Plaintiffs take only through Carrie Whitaker and George P. Whitaker, Jr., and then take only such sum of the whole residuary estate, now in the hands of the Maryland executor and not yet finally settled, as shall remain after the estate has been settled, this stock and other personalty has been reduced to money, and the amounts, if any, that Henry C. Whitaker may have owed his father, the testator, are charged and accounted for. I cannot see, from the terms of this will, the slightest ground for assuming that any shares of the Iron Company’s stock, in kind, have or can devolve by law upon plaintiffs, unless, by agreement between them and the executor of the estate, they are transferred to and accepted by them in lieu of the money the will gives them. These plaintiffs, not having been stockholders at any — 996 — time in the Iron Company, and none of its stock having devolved on them by law, they had no right “to put the wheels of justice in motion and to proceed to the final determination of a cause upon the pleading and evidence” (Railroad Co. v. Adams, 180 U. S. 28, 34, 21 Sup. Ct. 251, 45 L. Ed. 410), show “no standing in a court of equity, no right in himself [themselves] to prosecute this suit,” and the cause must therefore be dismissed, not alone on jurisdictional grounds, but finally for want of equity, under authority of Hawes v. Oakland, 104 U. S. 450, 462, 26 L. Ed. 827, Huntington v. Palmer, 104 U. S. 482, 26 L. Ed. 833, Quincy v. Steel Co., 120 U. S. 241, 7 Sup. Ct. 520, 30 L. Ed. 624, Illinois Cent. R. Co. v. Adams, 180 U. S. 28, 34, 21 Sup. Ct. 251, 45 L. Ed. 410, and Venner v. Great Northern Ry., 209 U. S. 24, 34, 28 Sup. Ct. 328, 52 L. Ed. 666. The Supreme Court, within the last two weeks in Christopher E. Williams, as Receiver, v. John P. Cobb, 242 U. S. 307, 37 Sup. Ct. 115, 61 L. Ed. -, says: “At common law * * * an, executor has full power, without any special provision of the will that he is administering or order of court, to sell or dispose of the personal assets of the estate, and thereby to pass good title to them. Munteith v. Rahn, 14 Wis. 210; In re Gay, 5 Mass. 419; Leitch v. Wells, 48 N. Y. 585; Perry on Trusts, §§ 225, 809. A sale by an executor, even to himself, is not void, hut only voidable at the option of interested persons. Grim’s Appeal, 105 Pa. St. 375; Tate v. Dalton, 41 N. C. 562. And if, after such purchase from himself, an executor sells to another, the purchaser from him acquires a good title. Cannon v. Jenkins, 16 N. C. 426.” We have, in West Virginia, no statute changing this common-law rule. It is in full force with us. It is clear, therefore, that the title to George P. Whitaker’s stock in the Iron Company vested and remains in Coudon, his’ executor. Footnotes [1] <§s»For other cases see same topic & KEY-NUMBER in all Key-Numbered. Digests & Indexes [2] other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes