text:
    No. 13,496.
    State of Louisiana vs. John Mansfield.
    Syllabus.
    1. Where an affidavit for a continuance shows that witnesses for whom subpoenas have issued are employed on a railway,'and fails to show that they reside within the jurisdiction of the court, or that there is, any certainty that their presence can ever be secured, this court will not interfere with the ruling of the trial judge refusing the continuance.
    2. A verdict and judgment will not be reversed, upon account of an alleged error in the ruling of the trial judge, when it is made apparent that the defendant could have sustained no injury therefrom.
    APPEAL from the Thirteenth Judicial District, Parish of East Feliciana — Golson, J.

      Milton J. Cunningham, Attorney General, and Isaac D. Wall, District Attorney, (Charles M. Cunningham, of Counsel), for Plaintiff, Appellee.

      W. H. McClendon for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

The defendant, having been convicted of burglary and sentenced to imprisonment in the State penitentiary for six years, has appealed. We have not been favored with any argument, oral or written, in his behalf, but the record presents two bills of exception, and a motion for new trial.

The first bill was to the refusal of the court to grant a continuance, in order to enable the accused to procure the attendance of certain witnesses, named by him, and for whom he had caused subpoenas to issue. From the affidavit made in support of the application for continuance, it appears that the witnesses were in the employ of the Mississippi .Valley Railroad Company, and it does not appear that they resided within, the jurisdiction of the court, or that there was any certainty that their presence could have been secured, if the continuance had been granted. The case, therefore, is not one in which the ruling of the trial judge should be interfered with. State vs. Duffy, 39th Ann., 421; State vs. King, 31 Ann., 179; State vs. Finn, 31 Ann., 408; State vs. Kane & Hunter, 36 Ann., 153; State vs. Clark, 37 Ann., 128; State vs. Primeaux, 39 Ann., 673; State vs. McCarthy, 44 Ann., 323.

The second bill reads as follows, to-wit:

“ On the trial of this case, witness for the State; E. P. Andrews, be- “ ing on the stand; having sworn that he was the officer who brought the “ two accused from the city of Memphis, being asked by the District “ Attorney, if any officer, or person in the city of Memphis, in the pres- “ enee of the accused, had made any statement relative to their arrest, “ and the finding of the stolen goods. And his answer was that the “ Chief of Police said to the witness, out of the presence of the accused, “ that the detectives, who were present, would show him (witness),' the' “ men who were found with the goods. Thereupon, the detectives con- “ ducted witness to the cell, where the accused were confined, and point- “ ed to them, and said: ‘These are the men that got the goods’; the last “ words in quotation marks were the. only words that these accused “ heard. Counsel for the defendants objected to the foregoing' testi- “ mony, upon the grounds that what had been said, leading up to the “ last statement, was out of the presence of the accused. That the ef- “ feet of the last statement, quoted above, could not be understood by ‘■'them, and that the said statement was not binding upon them, and “requested the court to so instruct the jury.”

It appears that there were two defendants, one of whom was acquitted, and we understand from the statement of the judge, that it was shown that the defendant on trial admitted having possession of the goods, which had been stolen, and undertook to account for it by saying that they had found them in a ear. Under these circumstances, neither the testimony objected to, nor the failure of the judge a quo to instruct the jury as requested, could have been prejudicial to him.

Judgment affirmed.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 13,118.
    B. J. Wolf & Sons vs. New Orleans Tailor-Made Pants Company, Limited, et. als.
    Syllabus.
    During the existence of a commercial partnership, suits in its favor should be brought in its name as a partnership ,and under the firm name, and as appearing through and represented by, all of the partners composing the partnership.
    The full names of the partners should be set out in the petition with the declaration that they were the partners composing the partnership. The suits should not be brought in the names of the individual partners.
    APPEAL from the Civil District Court, Parish of Orleans,— J. -

      Lazarus & Luce for Plaintiffs, Appellants.

      E. Evariste Moise, Giunio F. Socola and John Wagner for Defendants, Appellees.

      Statement op the Case.
   The opinion of the court was delivered by

Nicholls, C. J.

The petition filed in this case is declared to be “the petition of, Samuel A. Marcuse, Abraham J. Wolf and Marcus J. Wolf, citizens of the State of Louisiana and residents of the Parish of Orleans, and conducting a commercial business in the City of New Orleans, under the firm name of B. J. Wolf & Sons.”

The action is directed against PI. Bratman and the New Orleans lailor-Made Pants Company, Limited, which is declared to be a corporation created under the laws of the State, and judgment in. solido is asked against this corporation and Bra'tman for the sum of five thousand dollars..

The petition sets forth that petitioners are now, and have been for some years preceding the filing of this suit, extensively engaged in the manufacture of clothing, making a specialty of the manufacture of jeans pants, for the country trade; that they have large means engaged in their said business, and employ upward of five hundred people in the conduct thereof; that in order to successfully conduct their business and meet competition with home manufacturers, as well as those situated outside of the State and city, petitioners are obliged to employ a large number of clerks, known to the commercial world as “drummers,” through whom the various portions of territory, whose trade petitioners solicit and supply, are canvassed, the said drummers being sent into said territory with samples from which orders are taken and forwarded to petitioners,- and, if accepted, filled by them, and the trade thus supplied; that the margin of profit in the conduct of said business, considering the capital invested and the use that is made of the credit of your petitioners, and in consequence of the rivalry and competition of local as well as foreign competitors, amounts to but a fair interest upon their said investments, and that in order to insure reasonable returns and fair profits, the volume of business is an important if not a controlling factor.

That in order to insure the disposition of their manufactured product, they are obliged to employ the class of clerks or drummers, hereinbefore referred to, and that in their selection petitioners at all times hold out advantageous employment and liberal compensation to men having the requisite qualifications to fairly present your petiLoners’ product to the trade and secure the sale thereof; and that at times petitioners have employed upward of fifteen clerks or drummers, assigning to each specific territory, and giving to each drummer the advantage, in the way of compensation, of commissions on all sales made by them in their respective territories, or orders forwarded to petitioners’ firm and secured primarily through said drummers’ efforts.

That among the most efficient and capable clerks or drummers in their employ, and whose services were profitable to them, enabling them to effect large sales of their manufactured product, was H. Bratman (whose full name is to petitioners unknown), and who for the period of upwards of three years was in the employ of petitioners, his efforts as salesman being profitable and, advantageous to petitioners, and for which they allowed him liberal compensation; that said Bratman secured employment originally with petitioners under a written contract, dated October 5th, 1895, the said contract being without term of employment, but limited, as recited therein, to enable said Bratman to demonstrate his ability as a salesman, with the view of granting him, if the result of his primary trip was satisfactory, permanent employment; that on December 3rd, 1895, said contract was renewed and extended, and again on June 20th, 1896; that xmder said contract the commissions allowed to said Bratman were fixed subject to certain limitations recited in said contract; that the employment of said Bratman with petitioners was fcontinued uninterruptedly from the period of his first emplbyment; that on May 14th, 1898, the said employment was continued, under written contract bearing said date, and which contract was to run for the period of twelve months from its date, expiring on May 13th, 1899.; that, under said contract, said Bratman was to receive a fixed commission for his services, subject to certain conditions therein recited, all of which will more fully and at large appear by reference to said contract, a copy of which is annexed hereto and made part hereof as Exhibit “A.”

That the said New Orleans Tailor-Made Pants Company, Limited, and its aforesaid officers and stockholders, in their representative as well as their individual capacities, in furtherance of their personal interests (they being, as petitioners are advised, believe and charge, the sole stockholders in said corporation), knowing the value of the services of said Bratman, and appreciating his ability as a drummer, the said corporation, dealing- in the same class of goods as those manufactured by petitioners, and in order to secure the advantages of the trade which petitioners enjoyed in the territory assigned .by them to said Bratman while he was in their employ, combined, confederated and conspired, the one with the other and in their joint interest, for their personal benefit and advantage, and to the injury, damage and wrong of petitioners, to clandestinely secure the services of said Bratman, and entice him from his employment with your petitioners; and that said Bratman, knowing well the measure of his contract obligations with petitioners, but induced by dishonest and sinister motives, yielded to the persuasions of his said co-defendants in committing a breach of his contract and violating the terms thereof to the great wrong, damage and injury of petitioners.

That being advised that negotiations were pending between the defendant company and its officers and stockholders, with said IT. Bratman, looking to the employment of the latter in violation of his aforesaid contract, petitioners immediately informed the said corporation, by letter addressed to it under date of November 12th, 1898, that petitioners were entitled solely and exclusively to the benefit and advantage of the services of said PI. Bratman, for the period of one year from the date of the aforesaid contract, and which would not expire until May 13th, 1899, and that, during the period of said contract, said Bratman had obligated himself to give petitioners his exclusive time, and to travel for no one else and in no other interest; that notwithstanding said notice and warning to said company and its officers and stockholders, they, without any warrant and in violation of petitioners’ rights, employed said Bratman, said employment to begin, as petitioners are advised, on December 15th, 1898, and in' this manner inducing said Bratman to violate his contract with petitioners, to the great damage, wrong and injury of the latter, and to the benefit and advantage of said New Orleans Tailor-Made Pants Company, Limited.

That fhei relations existing between them and said Bratman, and the contract obligations and rights arising therefrom, were disturbed and violated through the wrongful and malicious intervention of said New Orleans Tailor-Made Pants Company, Limited, and the officers and stockholders thereof; and that thereby said Bratman was wrongfully prevented from performing his duty during his relations with petitioners, arising out of his contract obligations; and that employment, as aforesaid, was after notice and with knowledge of the existence of the said contract.

That the territory assigned by them to said Bratman under his contract, and wherein they enjoyed a large and profitable business, has been invaded- by said Bratman, in the interest of the said New Orleans Tailor-Made Pants Company, Limited, and its aforesaid officers and stockholders, and under their direction, and that said bratman, taking advantage of the confidence which petitioners have enjoyed in said territory, is inducing (as petitioners are informed, believe, and so charge) the former customers of petitioners to divert their trade to the said defendant corporation, and this under the direction of said corporation and its officers and stockholders.

That they have used every reasonable effort to diminish their losses consequent upon the aforesaid attempted diversion of their trade through the employment of said Bratman by his said co-defendants, but have been unable to secure the services of a competent, efficient, and reliable man to represent their interests in the said territory previously assigned by them to Bratman, and to secure and hold the trade which petitioners have enjoyed in said locality for and during the period of said Bratman’s'employment, and which trade said defendants have been attempting to divert, to the prejudice and wrong of plaintiffs.

That repeated efforts have been made by the said New Orleans Tailor-Made Pants Company, Limited, and its officers and stockholders, to entice and seduce from the employ of petitioners other clerks and salesmen, whose services have been advantageous and profitable to petitioners, and who the said defendants believed would insure to them a part of the business which petitioners have built up and established by honest conduct and fair dealing; and that said defendant corporation, its agénts and stockholders, envious of the reputation and business enjoyed by petitioners, have, as aforesaid, clandestinely approached other employees of petitioners, using for such purposes, at times, persons other than those connected with said corporation to carry out and execute their dishonest purposes, and which facts petitioners stand ready to establish and prove On the trial of this case.

That being presently without a representative in the territory heretofore traveled over by said Bratman, for the reasons already cited, there is no way by which they can estimate the exact measure of damages sustained by them in consequence of the wanton, malicious, and dishonest conduct on the part of the defendants herein, as aforesaid, and the result of their said conspiracy, save and except by taking as a basis the quantity of goods sold by the said Bratman, under his prior contract and during the period of time corresponding with the unexpired term of the contract which he is herein charged with violating, to-wit: for the months of Decémber, January, February, March, April, and up to May 10th, 1898; that the total amount of goods' sold by said Bratman during the period aforesaid aggregated the sum of $17,957.67; that, after allowing for all losses sustained as well as the payment of said Bratman’s commissions and the expense incident upon said sales, your petitioners, upon the said sales made by said. Bratman, made a profit oí ten per cent., or, on the aggregate amount, of $1,796.00; that the said estimate is conservative and represents, if the sales for the unexpired term of said contract were equal to the corresponding timé during the preceding year, the actual losses which petitioners sustained or would sustain in consequence of the deprivation of the services of said H. Bratman and his employment by said defendant company.

That in addition to the losses sustained hy them, as' aforesaid, their trade in the territory traveled by said IT. Bratman will be, in a measure, diverted, and it will take time, skill and money for petitioners to re-establish themselves after said territory has been gone over by said Bratman in- the interest of the defendant corporation, and the trade enjoyed therein by petitioners, diverted from them; that the aforesaid conduct of the said New Orleans Tailor-Made Pants Company, Limited, and its officers and stockholders, having been inspired by wanton, selfish and malicious motives, petitioners are entitled to recover, not only the actual damages which they have sustained, but also damages, the measure of which must be fixed by the jury and court, in consequence of said attempted inroads, dishonestly, upon the business relations and trade of petitioners; that petitioners are entitled to recover, in addition to their actual damages, as aforesaid, damages by way of punishment, punitive and exemplary, in an amount sufficient to partly compensate petitioners for the injury and annoyance to which they have been subjected, as well as to hold said defendants up as a warning against dishonest practices with servants and employees of rivals and -competitors in business; and that the measure of said latter named damages, independent of the actual losses suffered by petitioners, upon the estimates already given, and as a partial compensation to petitioners, and as punitory and exemplary damages, ought not to be less than five thousand dollars.

That the actions of said Bratman are without cause or provocation, and this to the knowledge of his co-defendants; that said Bratman is without means, and is, as petitioners are informed and believe, insolvent and unable to respond personally in damages sustained in consequence of his breach of duty — in the violation of his contract.

In view of the premises they pray that the New Orleans Tailor-Made Pants Company, Limited, through its proper officer, and each of the defendants herein named, in their individual capacities, be duly cited to appear and answer hereto; that after due and legal proceedings had, petitioners recover judgment against said corporation and against Charles Lob, Albert Lob, Godfrey Lob, and II. Bratman, jointly and severally, for the sum of five thousand dollars, as aforesaid, with interest from judicial demand; petitioners pray for trial by jury, and for costs and full and general relief.

Defendants excepted—

1. That said petition shows no cause of action.

2. That the parties plaintiff show on the face of said petition no interest in the cause of action, if any, propounded in said petition.

3. That the same is too vague, general and indefinite, to permit answer or admit truth.

4. That many of the allegations of said petition are so vague and indefinite that they do not put these defendants on their guard as to the facts intended to be established under them.

5. That allegations of said petition are conclusions of law and fact, so general and confused in their language, that defendants can not prepare their several defenses, and are not forewarned of the facts to be proven thereunder, from which the conclusions of law and fact are drawn.

6. That said petition is an illegal and improper joinder of distinct and different causes of action.

7. That it is an illegal and improper misjoinder of parties defendant.

8. That it is difficult, too much so, to condemn these defendants to answer, to say to whom the averments of the petition apply in some respects, and what facts are to be established against some of these defendants, and what against others of these defendants.

9. That the character of the action, the gravity of the charges therein made, and the seriousness of the results to these defendants demand, and the court should require full, fair and definite allegations, and not such as these allegations are, before requiring these defendants to answer.

The premises considered, defendants and exceptors prayed that these exceptions be maintained; the demand of the plaintiff rejected.

The court rendered judgment to the effect that “being of opinion that the petition ¡fails to disclose any interest on the part of plaintiffs in the cause of action set forth in said petition;

“ It was ordered, adjudged and decreed that there be judgment herein, dismissing the demand of plaintiffs, Samuel II. Marcuse, Abraham O. Wolf and Marcus J. Wolf, at their cost, without prejudice to the rights which the said plaintiffs may have as members of the commercial firm of B. J. Wolf & Sons, in an action brought by the said firm against defendants, upon the cause of action set forth in the petition herein.”

Plaintiffs appealed.

The motion of appeal was applied for by Messrs. Lazarus & Luce, as counsel “for plaintiffs,” on their suggestion that the judgment rendered dismissing the suit of “plaintiffs” was contrary to the law and the evidence, and the appeal was granted to the “plaintiffs.”

The appeal bond was executed by Samuel II. Marcuse, Abraham J. Wolf and Marcus J. Wolf, as principals.

The occasion of the giving of the bond is declared to be the rendition of a judgment against them in the suit of Samuel II. Marcuse, Abraham J. Wolf and Marcus J. Wolf, conducting business under the firm name of B. J. Wolf & Sons vs. New Orleans Tailor-Made Pants Company, Limited.

The condition of the bond * * * is that “Samuel H. Marcuse, Abraham J. Wolf, Marcus J. Wolf, shall prosecute their appeal, and shall satisfy whatever judgment may be rendered against them or that the same shall be satisfied by the proceeds of their estate, real or per-' sonal if they be east on the appeal, otherwise the surety should be liable in their place.”

Opinion.

Appellants are in error in their brief as to the ground upon which this suit was dismissed, in the lower court. We do not think the dismissal was due to the fact that the court presumed from the firm’s name, that B. J. Wolf was one of the partners in the firm of B. J. Wolf & Co., and therefore that the partnership was not in court, inasmuch as the concurrence of all the partners in the suit would be necessary for that purpose, in other words because of the non-joinder of B. J. Wolf in the petition.

We think the result would have been the same had B. J. Wolf been in fact a- partner in the firm, and had he been a co-plaintift', if the wording of the petition had been just as it is now.

We understand defendants’ objection to have been that the pleadings disclose a wrong done to a “partnership,” while the parties seeking redress for it, are the individual partners and .not the partnership itself.

Their contention is, that so long as a commercial partnership is in existence, suits in which it is concerned must be brought in the name of the partnership, giving its domicil and also the names and residence of all the partners. This position is based upon the proposition announced in Smith vs. McMicken, 3 Annual, 322; Robichaud vs. Barron, 14 Annual, 108, and Succession of Pilcher, 39 Annual, 365, that “a partnership once formed and put into action becomes in contemplation of law a moral being, distinct from the persons who compose it.”

“It is a civil person which has its peculiar rights and attributes. Une personne Active et morale separee des associes. Fictoe cujusdam personae vicem obtinet. (See the authorities cited in Trolong on Part., 368 et seq.)”

“Hence, therefore, the partners are not the owners of the partnership property. The ideal being thus recognized by a fiction of law is the owner: it has a right to control and administer the property to enable it to fulfill its legal duties and obligations and the respective parties who associated themselves- for the purposes of participating in the profits, are not the owners of the property itself, but of the residuum which may be left from the entire partnership property after the obligations are discharged.”

It is urged that the petition in this case is not that of the “partnership” but of the individual partners, and fliat the reference made by the parties to themselves as “conducting a commercial business in the city of New Orleans, under the firm name of B. J. Wolf & Sons,” ‘were mere “words” of description.’” '

Defendants assimilate the suit to one brought in which the plaintiffs should have described themselves as stockholders conducting an insurance business in a corporation doing business in the name of the •“United States Insurance Company” (or any other- designated company).

The Code of Practice under neither the heading of “What persons are entitled to bring actions” (C. P. 102, eb seq.), nor of “Petition and Citation” (C. P. 169), describe in what language petitions brought on behalf of existing partnerships should be framed. Article 172 simply states generally that a petition must mention “the name, surname, and place of residence of the plaintiff”.

Article 165 referring to the courts before which actions are to be brought, declares:

“In-matters relative to partnership, as long as the partnership continues, in all suits concerning it, the parties must be cited to appear before the tribunal of the place where it is established, or if there are several establishments, before that of the place where the. obligation was entered into.”

Article 198 of the Code of Practice referring to the mode of service of a petition and citation declares that the service must be made “in suits against any commercial association, trading under a title or as a firm, on any of the partners in person or at their store or counting house by delivery to their clerk or agent”.

Article 446 of the Civil Code declares that “Corporations unauthorized by law or by an act of the Legislature enjoy no public character and can not appear in a court of justice, but in the individual name of all the members who compose it, and not as a political body, although these corporations may acquire and possess estates and have common interests as well as other private societies”.

Defendants admit that the petition would bring a partnership organized under the common law into court in a common law state, but they deny that it does so in a state where the civil law prevails.

The only decision brought to our attention by defendants upon this subject, or which we ourselves have found, is that of Key vs. Box, 14 Annual, 497, which is not directly in point.

In that suit Peyton A. Key brought suit again John Box. Defendant did not contest the correctness of plaintiff’s demand, but contended that it was extinguished by compensation to the amount of a claim which he set up against the firm of Peter Tellon & Co., of which he alleged the plaintiff to be a partner.

Then followed a reeonventional demand for the surplus of this claim.

This court said that “it was well settled that compensation did not take place between partnership and individual debts under the operation of Articles 2203 and 2204 of the Civil Code. So that John Box could not plead as an offset to the debt which he owed individually, his claim against the firm of P. Tellon & Co., although the plaintiff was liable solidarily for all the debts due by the firm”.

The court, in arguing, said: “The rule of law is that during the existence of the partnership the suit must be brought against the firm and not against the individual partners.' (C. P., 165; Davis vs. Eloi et al., 4 La., 107; Lambeth et al. vs. Vauter et als., 6 Robinson, 137.)

In Crozier vs. Hodge, 3 La., 359, this court, after stating that the surviving partner of a commercial partnership had not the right as such to sue for or receive the debts due to the firm and that all the parties composing it must join in the action, said that “it was not the case of one creditor in solido who had the right to receive the whole of the debt and who, perhaps might sue for it. That the obligation was made to a commercial firm and the parties composing it must join in the action, for the debt was due to the partnership collectively and not to one or others of the partners as creditors in solido."

There is no question that debts due to the individual partners of a commercial partnership and suits brought by, and judgments obtained by them, carry with them legal results and rights and obligations different from debts due to, and suits brought by,.and judgments obtained by, the partnership to which they belonged. (C. C. 2823.) Even though a judgment rendered in a suit brought in the name of the individual members of a commercial partnership might be shown from the pleadings and evidence to have been really a judgment rendered upon a partnership cause of action, and be made to enure to the benefit of the partnership, and even though any attempt to utilize it in favor of creditors of the individual partners might be successfully resisted, still it would be a better and more correct practice to so frame the pleadings as to do away with the necessity of any investigations of that character.

Plaintiffs’ pleadings show affirmatively that they were associated together conducting a commercial business under a firm name. Resulting from that fact followed the creation of a commercial partnership with a firm name. It was an entity for the purpose of rights and obligations, of suits and of judgments for and against it, differing from the individuals creating and composing it. Suits in its -favor should be brought as a partnership in the firm name, and as appearing through and represented by all of the partners composing the partnership, their full names and residence being set out in the petition.

Plaintiffs recite the fact that they were conducting a commercial business under the firm name of B, J. Wolf & Co., but they do not declare that in appearing in the suit they do so in their capacities as partners of the partnership, and as collectively representing and bringing the partnership into court.

It has been held that a succession is not properly brought into court as plaintiff, through a petition in which the petitioner describes himself as being the administrator of the succession, but does not declare that in appearing therein he does so “as” its administrator and as representing it.

We regret having to dismiss a suit brought on behalf of a partnership in a manner which has been so often acquiesced in, but as we believe the exception' to be well taken in this State, we are forced to sustain it.

This view of matters leaves the suit without a proper plaintiff and it would be inconsistent to proceed to the decision of other questions involved. It may not be amiss, however, in view of the possibiliy of another action, to say that it has been held that where a party has actually suffered a legal wrong and makes a proper statement of the facts of the case, a-mistake as to the precise relief to which he might be entitled, would not necessarily make the.demand demurrable (66 North Western Repr., 941), nor would an error made by a party as to the measure of damages applicable to a particular state of facts, carry with it the loss of the right to maintain an action upon that state of facts. (45 Pac. 218.)

Whether plaintiffs’ petition discloses or not a cause of action, or whether they had made any mistake or not, are matters we do not undertake to now pass upon.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the samé is hereby affirmed.

Rehearing refused.


author: Monroe, J.

text:
    No. 13,487.
    Edward A. Mequet vs. Nathan Silverman.
    Syllabus.
    1. Where a defendant is charged with having slandered the plaintiff, and liles a general denial, he is entitled to offer proof as to the language which he claims to have been actually used by him, and to show, if he can, that, as used, it imported no sinister meaning. And so, if the language imputed to the defendant is susceptible of an interpretation which would render it harmless, the defendant is entitled to offer proof, under the general denial, which would justify that interpretation.
    2. Where a person is charged with having passed a counterfeit bill upon another, and it appears, from other language, shown to have been used at the time, and from the surrounding circumstances, that it was meant to charge him with having passed such bill knowingly, and with intent to injure or defraud the person upon whom it was said to have been passed, and the charge, made and repeated in the presence of others, is shown to have been utterly without foundation, malice, upon the one hand, and injury, upon the other, will be presumed.
    3. In such a case, the plaintiff, being a boy of good character, past eighteen years of age, a verdict, in his favor, of one dollar, is worse than inadequate; it is equivocal, and will be increased.
    APPEAL from the Twenty-Fourth Judicial District, Parish of St. Mary — Allen, J.

      Milling & Sanders and John B. Roberts for Plaintiff, Appellant.

      Wilson & Mayer, Emmet Alpha and Carroll & Carroll for Defendant, Appellee.

      Statement op the Case.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff alleges, in substance, that the defendant, falsely, maliciously, without probable cause, and for t'he purpose of inflicting injury, slandered him, by accusing him of having passed upon him (the defendant), a counterfeit five dollar bill, and that he (the plaintiff), has thereby been damaged in his reputation, feelings and business prospects, in the sum of $4,000; and he prays judgment therefor, and for $1,000 as punitory damages. The answer is a general denial. The case was tried before a jury, and, from a verdict and judgment in favor of the plaintiff for one dollar, both parties have appealed, and each has answered the appeal of the other; the plaintiff asking an increase in the amount allowed, and the defendant asking that the judgment appealed from be reversed and the suit dismissed. •

' The facts, as we find them from the evidence in the record, are as follows, to-wit:

The plaintiff is a minor, over eighteen years of age, who has always borne an excellent reputation, and is employed in a sash factory, turning his wages over to his mother, with whom he lives, and who keeps a hotel in the town of Franklin, in this State. Tie was emancipated by judgment of the court shortly after the occurrence out of which this suit arises, and, therefore, sues in his own name.

Upon the evening of September 16th, 1899, at about eight o’clock, being in front of the confectionery store of Boracco & Rabasa, he was asked by Rabasa to get small change for five silver dollars handed him for that purpose, which change Rabasa needed in his business. He, accordingly, crossed the street to the, store of Mr. Bell, and applied to Moore, a clerk who was employed there, for small change for the silver money, which he was holding in his hand; Moore declining to furnish it, he went to another place (Charpiat’s), and being unsuccessful there, he went to the defendant’s store and obtained the needed change, giving for it the five dollars which h® had received from Rabasa. About two hours later, between ten and half past ten o’clock, when the defendant was counting his cash, he found three five dollar bills in his drawer, one of which he thought was counterfeit,'and, after some conversation with his clerk, as to where the bill had come from, or was likely to have come from, he concluded that he had received it from the plaintiff. He accordingly went to the plaintiff’s home, which was closed for the night, knocked at the door, and, upon its being opened by the plaintiff, who was in the act of retiring to bed, charged the latter with having passed a counterfeit bill upon him, told him that he did not think that he would have played such a trick, or words to that effect; that he was not ¡a gentleman, etc., etc. To this plaintiff replied, denying that he had passed any bill on the defendant, counterfeit or otherwise, assuring him that he had given him only five silver dollars,' which he had received to be changed, and offering to go with him to Rabasa, from whom he had received them¿ in order that his statement might be, so far, corroborated. The defendant consented to this proposition, but continued en route, to insist that the plaintiff had passed upon him the bill, which he had in his hand-and which he declared to be counterfeit, and talked about prosecuting unless the supposed loss was made good. When they reached Rabasa’s store, that gentleman was asked what sort of money he had given the plaintiff to get changed, and he answered, at once, “five silver dollars”. The plaintiff, however, said, in substance, and in the presence of several persons, that, no matter what Rabasa had given to the plaintiff, the latter had passed on him, the defendant, the bill which he held in his hand, and that it was counterfeit. The parties then crossed the street, to Bell’s store, and Moore, Bell’s clerk, was asked what sort of money the plaintiff had requested him to change, and he answered that it was silver: The defendant, nevertheless, insisted, and by this time, in the presence of quite a crowd, variously estimated at from six or seven to fifteen or twenty persons, that the plaintiff had given him the bill which he held in his hand, and which he again alleged was counterfeit, the discussion assuming the form of an excited altercation, and being conducted with rather loud voice and angry manner on both sides, and some harsh language being, eventually, used by the plaintiff.

On the Monday, following, it appears that the defendant ascertained that the bill, which he had taken to be a counterfeit was, in point of fact, a good bill; but the record is barren of evidence tending to show that he made any effort to correct the erroneous impression which his previous statement might have made. When this suit was filed, his answer, as has been stated, was a general denial; and upon the trial, he undertook to maintain, by his evidence, that he never charged the plaintiff with having passed on him a counterfeit bill.'

His testimony upon this point is, however, contradicted by that of several witnesses, and is without affirmative corroboration; in fact, is inconsistent with itself and with his course of conduct. Upon the other hand, the statement made by him, when he and the plaintiff reached Rabasa’s place of business, imported that the plaintiff had substituted a bad bill of his own for the silver which Rabasa had given him. Thus, we find in his narrative, on direct examination, the following, to-wit:

“ He said, I gave you five silver dollars, and he said, I will go to Jack “ Rabasa’s and prove it to you; so he took his hat, and we came then “to Jack Rabasa’s; and he called out Jack Rabasa, and said, ‘What “ kind of money did you give me ?’ lie said, ‘five silver dollars’. I “ said, I don’t care what you gave him, I will swear that he gave me a “ five dollar bill.”

Other witnesses testify that the defendant added, that the bill given to him by the plaintiff, and which he held in his hand, was a counterfeit. íhe evidence, therefore, fails to sustain the defense, in so far as the latter consists of a denial that the defendant used language to the effect that the plaintiff had passed a counterfeit bill on him; and it equally fails, in so far as the answer is to be construed as a denial that the language used was Intended to make the charge in an offensive or injurious sense. There is no doubt that the defendant believed that a counterfeit bill had been passed upon him, and that the plaintiff was the person who had passed it; and he acted promptly, vigorously, and persistently, upon the basis of that conviction, and also, in the belief, apparently, that the plaintiff had acted knowingly and from a bad motive. It turned out that he was entirely mistaken; that no counterfeit bill had been passed upon him; and that the plaintiff had given him no bill, good or bad, but had given him the five silver dollars, which he, the plaintiff, had received from Rabasa. In the meanwhile, the defendant had inflicted an injury, upon the plaintiff which he has never repaired, nor attempted to repair, so far as appears from this record.

The evidence as to the precise extent of that injury, measured in dollars and cents, is necessarily indefinite. The witnesses who were interrogated upon th$ subject, testify that the plaintiff is a boy of good character, and several of them who have known him all his life, state that the charge did not affect their opinion of him, because they did not believe it to be true. From which it is argued that no damages ought to be awarded for the alleged injury -to character and business prospects.

Opinion.

Objections were made, during the trial, by plaintiff’s counsel, to certain testimony, upon the ground, that the defendant, having pleaded a general denial, is precluded from justifying or extenuating the charge, which he thus denies having made. The proposition, as stated, is, no doubt, sound, in the abstract, but we find it inapplicable in this case, for the reason that the defendant endeavored, by .means of the testimony objected to, to sustain his denial that he had used the injurious language imputed to him, and to show that the language which he did use, amounted, substantially, to a harmless statement, to the effect that he had received a bill, which appeared 'to be counterfeit; that he was under the impression that it might have been given to him by the plaintiff; that his purpose was to inquire of the plaintiff whether that was the case, rather than to charge it as a fact; and that it was not intended to inflict injury, and was not likely to have had that effect. From this point of view, we think that the testimony was properly admitted, since even a statement that one has passed a counterfeit bill upon another may be made without either the intention or the' effe.ct of inflicting injury, as there is no imputation of crime or wrong doing, necessarily, involved; and it is only where the language used, taken in connection with the surrounding circumstances, conveys the idea that the person who passed the bill did so knowingly and with the intent to defraud that it becomes injurious or slanderous.

In the instant case, the surrounding circumstances, and more particularly, the additional language used by the defendant, to the effect that the plaintiff was no gentleman; that the defendant did not think that he would have done such a thing, or played a trick of that kind; that, no matter what money the plaintiff had received, he had given the defendant a five dollar bill, which was counterfeit, taken in connection with defendant’s insistence upon, and reiteration of, the charge, leaves no doubt that he intended to make it, and did make it, seriously.

This being the case, and in view of the fact that the defendant was grossly mistaken in the whole matter, and closed his mind to all evidence tending to show that he was mistaken, .whatever may be said with regard to the existence of particular malice, or spite, or with regard to the necessity of proving such malice, the law implies that kind of malice, which means, and is expressed by, a grossly negligent, or wanton, disregard of the rights of others. And, whilst evidence as to actual malice, and as to special or specific injury wa.s admissible, it is not essential to recovery. Cauchoix vs. Dupuy et als., 3 La., 208; Tresca vs. Maddox, 11 Ann., 206; Perret vs. N. O. Times, 25 Ann., 170; Staub vs. Vanbenthuysen, 36 Ann., 467; Williams vs. McManus, 38 Ann., 161; Sportorno vs. Fourichon, 40 Ann., 423; Weil vs. Israel, 42 Ann., 955; Savoie vs. Scanlan, 43 Ann., 967; Warner vs. Clark & Co., 45 Ann., 863; Taylor vs. Ellington, 46 Ann., 371; Tarleton vs. Lagarde, 46 Ann., 1368; Wimbish vs. Hamilton, 47 Ann., 254; Fellman vs. Dreyfous, 47 Ann., 907; Harris vs. Minevielle, 48 Ann., 908; Poissenot vs. Reuther, 51 Ann., 965.

The verdict and judgment in favor of the plaintiff for one dollar is worse than inadequate, it is equivocal. It is a verdict which might possibly have been rendered in favor of' one whose character was so bad, and who had become so hardened and callous, as to be practically beyond the reach of defamatory language,, but who, nevertheless, was, technically, entitled to a judgment.

It is, therefore, ordered, adjudged and decreed that the verdict and judgment, appealed from, be amended by increasing the same from one dollar to three hundred dollars, the defendant to pay all costs.


author: Blanchard, J.

text:
    No. 13,318.
    Emile Thibodeaux vs. William H. Cayard.
    Syllabus.
    Where the court because of misinformation of the true facts grants an order extending the return day of an appeal, and this misinformation is chargeable to tlie appellant or his counsel, and it subsequently develops In a motion to rescind the order and to dismiss the appeal that the facts were such that if brought to the timely attention of the court the order would not have been granted, the same will be revoked and the appeal dismissed.
    APPEAL from the Seventeenth Judicial District, Parish of Ver'million — DeBaillon, J.

      Broussard, KitcheTl & Bailey for Plaintiff, Appellee.

      John L. Kennedy, Todd & Davis and 8. P. Watts, for Defendant, Appellant.
    On Motion to Dismiss Appeal.
   The opinion of the court was delivered by

Blanchard, J.

The minutes of the trial court show that judgment herein in favor of plaintiff was rendered on April 27, 1899, whereupon, on the same day and before the judgment was signed, court adjourned, to the next sitting in due course.

On June 5th following, court being again in session, the judgment was formally signed, and the next day in open court, defendant’s counsel took an order of appeal, suspensive and devolutive.

The appeal bond was executed June 13, 1899. The return .day of this appeal was the first Monday in November, 1899, which was the 6th day of that month.

It was necessary to file the transcript within three days thereof.

On the 7th of November application was filed by the appellant for an extension of the return day, and for reasons deemed good and sufficient an order was made extending the time for filing the appeal until the second Monday of January, 1900.

The second Monday of January was the 8th day of that month, and a legal holiday.

On the 9th a second order was made granting an additional delay of fifteen days “to have the transcript of appeal herein completed and to lodge it in this court.”

The transcript was filed January 20th, 1900.

The second order granting the additional delay of' fifteen days was predicated upon the following application, viz: —

“The defendant * * * moves this Honorable court to grant an extension of the return day for fifteen days from this date; to-wit:— 9th of January, 1900, for the reason that the transcript, which was prepared and which the Clerk of the District Court of Yermillion Parish was to forward, all arrangements having been made to that effect by appellant, has not been received and filed in this court, and this without the fault or negléet of appellant, and said appellant shows that within the time (15 days) mentioned another transcript can be prepared if the first has been lost.”

At the time this application was filed and the further extension, based on its averments, was allowed, a certificate, dated January 8th, 1900, had been given by the Clerk of Court of Vermillion Parish to counsel for plaintiff and appellee setting fprth an entirely different state of facts. This certifícate recited that the transcript was completed in time to return the same to this court on the 8th of January, the date of the first extended return day, and that it was not delivered to the appellant for the sole reason that he had failed and neglected to pay for the same.

Had these facts been brought to the attention of the court the second extension of return day would have been denied.

Following the filing of the transcript, and within two days thereafter, the appellee filed the motion under consideration to rescind and set aside the order granting the second extension, and to dismiss the appeal.

It is set forth as grounds for the motion, that the transcript of appeal was not delivered to the appellant to be filed in this court on the first extended return day for the sole reason that the appellant failed and neglected to pay the clerk’s costs for preparing the same.

A second certificate of the Clerk of the trial court is appended, dated January 19, 1900, duly sworn to, supporting these grounds.

The Clerk states he notified the attorney of the appellant that the transcript would not be delivered until his costs for making out the same were paid; that on the 5th of January, 1900,'the attorney informed him he ¡would give in settlement of the costs the promissory note of the appellant, indorsed by a party named; that he (the clerk) called on the party the following day and he refused to obligate him'self for the costs; and that he thereafter informed the attorney of the refusal, and again declared his purpose not to deliver the transcript until paid for.

He further states that the transcript was then complete with the exception of the index, which could have been completed at the proper time, the record being a small one, had satisfactory arrangements been made with him for the payment of his costs.

By the second section of Act 24 of the Acts of 1872, the Clerk of the court from which an appeal is taken is authorized to withhold delivery of the transcript of appeal until his fees for preparing the same are paid.

It thus clearly appears that the appellant was not entitled fo the second order granting the fifteen days additional delay in which to file the transcript of appeal; that the same was granted through error and because of the want of knowledge of the true facts; and that for this appellant must be held responsible. See Chretien vs. Poincy, 33 La. Ann. 132.

The motion to rescind and set aside this order and to dismiss the appeal must, therefore, prevail, and, accordingly, it is so ordered.

Breaux, J., having been of. counsel recuses himself.

Rehearing refused.


text:
    No. 13,321.
    Successions of Patrick Burns and of Mrs. Margareth McTiernan, His Wife.
    Syllabus.
    1. Where a minor marries, without the consent of his parents and is disinherited therefor, and the other heirs prove the facts on which the disinherison is founded, such disinherison must be sustained by the courts.
    2. A son, who, after the death of his father, claims that a large sum, which had come into his hands from the proceeds of a mortgage imposed by h'is father upon the property belonging to the pre-existing community between him (the father) and his deceased wife, was paid to him, as back wages, for services rendered during a series of years, and whilst he was living at the parental home, free of charge, and was clothed and furnished with pocket money by his father, must make a clear case, or he is not entitled to withhold the amount, so received by him, frorp collation, in a settlement with his co-heirs.
    APPEAL from the Civil District Court, Parish of Orleans — Ellis, J.

      Parherson & Tobin and Bernard Bruenn for Executrix, Appellant.

      Saunders & Gurley and Wynne Rogers for Henry B. Burns, Opponent, Appellee.

      Andrew J. Murphy for Thomas M. Burns, Opponent, Appellee.
   The opinion of the court was delivered by

Monroe, J.

Upon October 2nd, 1895, Margareth McTiernan died in. New Orleans, and upon July 5, 1897, Patrick Burns, her husband, followed her to the grave. The decedents left, surviving them, four major children, issue of their marriage, to-wit: Thomas, Annie, Ilenry P., and Francis E. Burns. The successions were consolidated, and Annie Burns qualified as executrix of both parents, and, in June, 1898, filed an account which was opposed by a number of persons, among whom were Henry P., and Thomas Burns, her brothers.

It appears that Thomas Burns was the eldest child, and that he was born in 1855, and married in 1874, before attaining the age of nineteen years. Upon the thirtieth of November, 1891, his parents, Margareth Burns and her husband, made wills, by public acts, substantially identical in terms, and, muiatis mutantis, reading as follows, to-wit:

“ My name is Margareth McTiernan; 1 am the wife of Patrick Burns; I have never been married except to Patrick Burns, by whom I have five children living, all of full age of majority, namely Thomas, Annie, Henry P., Lawrence W., and Frank E. Burns. I desire to, and do, by these presents, disinherit my son, Thomas Burns, because he got married while a 'minor, without my consent or knowledge, and without the consent or knowledge of my husband. I hereby will and bequeath to my daughter, Annie Burns, all that part and portion of my estate, which the laws of this 'State allow me to dispose of, giving it to her as an extra portion and advantage. The balance of my estate, I desire shall be equally divided between my four children, Annie, Henry, Lawrence W., and Frank E. Burns. I nominate, and appoint my husband, Patrick Burns, to be the testamentary executor of this, my last will and testament, with full seizin and detainer of my estate, and specially exempt him from giving the security required by law in such cases; and, in case of his inability to act, I appoint my daughter, Annie Bums, testamentary executrix of this will, with seizin, and without bond, and, in case of the inability of both to act, I nominate and appoint my son, Lawrence W. Burns, to be the testamentary executor of this will, with seizin of my estate, and without, bond. I never made a will before.”

Patrick Burns names his son Henry P. Burns as his executor, in the last resort, where Mrs. Burns names Lawrence W. Burns; the dispositions in the two wills are, otherwise, identical. Lawrence W. Burns having died without issue, in 1894, before the death of either parent, the executrix proposes to divide the estate between Henry P. and Frank E. Burns, and herself, to the exclusion of Thomas, who is considered as disinherited. She, however, calls upon Henry P. Burns to collate the sum of one thousand nine hundred and eighty-two 89-100 dollars, which she claims that he has already received, and the judgment of the lower court holding that the attempted disinherison of Thomas iij not effective, and that Henry is not bound to collate, she has appealed therefrom, and asks that it be reversed in those particulars.

By the textual provisions of the Code, the marriage of a minor, without the consent of the father and mother is a “just”, or “good” cause for disinherison (C. C., 112, 1621) ; but, in order to make such disinherison effective, the reason therefor must be expressed in the testament, “And the other heirs of the testator are moreover obliged to prove the facts on ivhich the disinherison is founded, otherwise it will be null.” C. C., 1624.

It is undisputed that Thomas Burns married whilst yet a minor; the other fact to be established is that he married without the consent of his parents, and this fact, we think, is established by the, testimony of his brother and sister, and of Scully, who was his intimate friend at the time of his marriage, sustained, as it is,.by strong corroborating circumstances. Henry P. Burns was born in 1864, and was, therefore, about ten years of ag>e in 1874, when his brother married. He testifies that his parents did not give their consent, and his sister, Annie, who was born in 1862, and was, therefore, about twelve years of age at the date of the marriage, testifies to the same effect. Scully testifies that, at the time of the marriage, Thomas Burns was excluded from his father’s house, and was living with the family of the young lady who became his wife, that he asked him, Scully, “to stand up with him”, and that the witness refused, unless he would let his father know all the facts; that a Mr. Duran, who was in the employ of Patrick Burns, was sent to see if he could get his consent to the marriage, and that he brought “an answer” back, and that the marriage took place at once, though they had not intended that it should be celebrated until two days later. The witness does not state what the answer brought by Duran was, nor does he say that he “stood up” with Thomas Burns. He does say, however, that, after the marriage, Burns lived with his wife’s family; and that it was something like two years before he visited his father’s house; and, in this, he is fully corroborated by Thomas Burns, himself, who also testifies that it was “four, five, or six years” after his marriage, before his wife visited his father’s house, and that, whilst his mother attended the funerals of his three children, his father did not.

It is true that Patrick and MargaretH Burns took their son into their house, at different times, when he needed assistance, but his wife was not with him, and they never became reconciled to her, or to the marriage.

They certainly were not reconciled when, seventeen years after it had taken place, they- disinherited their eldest son, on account of it, and the proof is equally wanting to show that they became reconciled thereafter. On the contrary, the mother lived about four years, and the father nearly six years, after the making of their wills, and yet they died leaving them unchanged. It may be remarked too, that, whilst Thomas Burns took the stand, as a witness in his own behalf, he did not undertake to deny that he had married without the consent of his parents; or to assert that they had ever become reconciled to it. Under these circumstances, we have no alternative but to apply plain provisions of law to equally plain facts, and, doing so, to maintain the provisions of the wills of Patrick and Mafgareth Burns which are the subjects of the present attack.

Bosworth vs. Beiler, 2 A., 293.

The executrix states in her account, that Henry P. Burns should collate the sum of one thousand nine hundred and eighty-two 89-100 dollars, made up, as she claims, of one thousand five hundred dollars received by him as the proceeds of a mortgage given by Patrick Burns to James Timony, and of four hundred and eighty-two 89-100 dollars being, as she alleges, the amount of rent collected by him for the account of Michael McTiernan. of whom Patrick Burns was the agent, and for which rent the succession is held responsible. It is admitted that, of the one thousand five hundred dollars represented by the Timony mortgage, three hundred dollars was used for the purpose of paying a pre-existing debt, due to the mortgagee, and that one hundred and five dollars was deducted by way of discount, so that the actual amount derived from the mortgage in. question, which went into the hands ox Henry Burns, was one thousand and ninety-five dollars. As we understand his testimony, the receipt of this money is not denied by him, but he claims that it was paid to him, by his father,,for services rendered, as workman, or foreman, during a number of years, preceding his father’s death, and hence, is not subject to collation. This theory finds little or no support outside of the testimony of the opponent, Henry P. Burns, himself, and that testimony, so far from being satisfactory, is largely unintelligible.

The witness seems to date the beginning of his services as far back as 1879, when he was fifteen years of age, and speaks of having worked between 1879 and 1891 or 1892. He admits that, during all that period, he lived at his father’s house, free of charge, was clothed by his father, and received a small amount each week for incidental expenses. He says that his wages as foreman were three 50-100 dollars per day, but he does not tell us from what date they were fixed at that rate, and he presents no statement of debits and credits, and seeks to leave the impression that not a dollar was ever paid to him until the proceeds of the mortgage in question wex’e turned over to him, in globo, without any adjustment of his account and under circumstances which render the explanation, which he now attempts to make, an unusually difficult one. The transaction took place in May, 1896, some seven or eight months after the death of Mrs. Burns, and consisted, in part, of the imposition of a mortgage, by the surviving husband, upon the property of the pre-existing community; — a mortgage of fifteen hundred-dollars, which, considering that the entire interest of Patrick Burns in that community was appraised, two years later, at three thousand and seventy 50-100 dollars, it must be admitted, was, relatively, a heavy burden. Beyond this, the evidence shows that Patrick Burns was then in a very poor state of health; that he continued to get worse until he died, in July, 1897; and that he, himself, was so sadly in need of money, that, about that time, he was obliged to get his son, Dr. Frank Burns, to send one hundred dollars to his brother-in-law, McTiernan, on account of a considerably larger sum, representing rents due to the latter which had been collected, and for which he was responsible, the one hundred dollars thus borrowed being in addition to four hundred dollars which he had borrowed from the same son several years before, and which were, in part, unpaid, at the date of his death. Further than, this, the evidence shows that the opponent, Henry Burns, used the money in question in the building of a house on certain lots which stood upon the public record as the property of Annie Burns, his sister, and that, whilst the building was going on, in 1896, his father being still alive, he went to California, where he was entertained for some weeks by his mother’s brother, Michael McTiernan, who testifies concerning a conversation with him, as follows: “He made a remark, unsolicited; he said, I am building a house for my sister Annie; and I said, where arc you building the house; lie made no reply; 1 said, where did you get the money to build, and he said, we arranged it on a mortgage!” The opponent now undertakes to say, by way of explanation, that the lots, standing in the name of his sister Annie, in reality belonged to him, and that he had put the title in her name, because he was in business as a builder, and,‘as we understand him, was liable.to have claims, of one kind or another, made against him, so that it was safer for him to have his property in the name of some one else. It also appears from his testimony, that there was some exchanging'of property between his sister Annie and himself, and it is stated in argument,'that she now owns the property referred to. These explanations are difficult to understand, but the undisputed fact remains that the opponent does not deny that the proceeds of the fifteen hundred dollar mortgage, given by his father, less three hundred dollars which was already due to the mortgagee, and less one hundred and five dollars discount, inured to his personal, individual benefit, and he claims that he is entitled to keep it, free of collation. Considering this claim, apart from any specific testimony concerning it, there is nothing in this récord which would justify the conclusion that Patrick Burns would have had his son to work for him for years, at the agreed price of three 50-100 dollars per day, and pay him absolutely nothing; and there is still less, if possible, to indicate that the opponent would have worked for Kis father, or for anyone else, on such terms. .'Beyond the testimony of one or two witnesses, who knew that he worked for, or with, his father, his testimony that the amount in question was paid to him, as back wages, is entirely without support, and is inconsistent with probability and with his own statement made to his uncle, during his father’s life.

We are therefore of the opinion that this amount should be collated.

As to the four hundred and eighty-two 89-100 dollars, of rent, which he is said to have collected, the evidence makes it probable, not that he collected the rents, but that he received a part, and probably a considerable part, of the amount, from his sister, by whom it was collected from the tenants. But this is not established with sufficient certainty to justify a judgment holding him liable.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed, in so far as it sustains the opposition of Thomas M. Burns to the account filed by the executrix, and in so far as it sustains the opposition of Henry P. Burns, with respect to the sum of one thousand and ninety-five dollars, included in the item of one thousand nine hundred and eighty-two 89-100 dollars; and it is now ordered, adjudged, and decreed that the opposition of Thomas M. Burns, and the opposition of Henry P. Burns as to the sum of one thousand and ninety-five dollars, included in the. item of one thousand nine hundred and eighty-two 89-100 dollars for which he is called upon to collate, be rejected, and the claims of the opponents be dismissed. It is further ordered, that, in all other respects, the judgment appealed from be affirmed, and that this cause be remanded to be proceeded with according to law, and to the views expressed in this opinion, the costs, in the lower court, of the opposition of Thomas M. Burns, to be paid by said opponent, and the costs, in the lower court, of the opposition of Henry P. Burns, to be paid by the succession, and the costs of the appeal to be paid by the said two opponents in solido.


text:
    No. 13,452.
    Samuel H. Marcuse vs. Gullett Gin Company.
    Syllabus.
    1. There Is no necessity for the appointment of a special receiver to institute actions to recover from the officers and directors of a corporation, who hold a majority of its stock, property of the corporation which a stockholder charges them with having illegally diverted and appropriated to themselves, as salaries. The individual shareholder may himself bring such actions by making the corporation and the directors, against whom relief is sought, parties.
    2. Where a single shareholder charges that the directors of a corporation have, in the past, in bad faith, unjustifiably, and to the prejudice of the small holders, devoted its surplus earnings to the extension of its plant, and its business, instead of declaring dividends, and that they will continue to do so, there is no necessity for the appointment of a special receiver to obtain relief — the individual stockholder has full and adequate remedy through action in his own name.
    APPEAL from the Civil District Court, Parish of Orleans.— King, J.

      Lazarus & Luce for Plaintiff, Appellant.

      Farrar & Lemle for Defendant, Appellee.
    Statement op the Case.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff’s demand is based upon allegations that, he is'the owner of twenty-five shares of the par value of one hundred dollars each, of the capital stock of the Gullett Gin Manufacturing Company, a corporation created and existing under the laws of the State.of Louisiana', with its domicile in the Parish of Orleans; that the capital stock of said corporation, as organized under its charter, is one hundred thousand dollars, and that petitioner is advised, informed, believes and so avers, that all of said capital stock was subscribed and paid for.

That the objects and puiposes of said corporation are declared to be for the manufacture of cotton gins, cotton presses, agricultural implements, engines, and any and all kinds of machinery, and the sale thereof; that under the charter of said corporation, the superintendence and management of its affairs are confided to a Board of Directors, who are to be elected. annually, and from said Board are chosen the executive officers of said corporation; and that all of the foregoing will more fully, and at large, appear by reference to the charter of said corporation, a certified copy whereof will be produced upon the hearing of this cause.

That he is advised, informed, believes and so charges, that immediately upon the formation of said corporation the control of its stock was centralized and syndicated in the hands of Albert Baldwin, John H. Hanna, Cartwright Eustis, and others presently unknown to petitioner, but who acted in confederation with said parties and under their direction and control; that among those so assisting the said Baldwin, Iianna, Eustis and others, in the operation of the business of said corporation was one B. W. Taylor, who, owning a limited amount of the capital stock, parted with the equitable title thereto, in July, 1887, by the pledge thereof at, or about, the value of said stock at that time, and which said stock was subsequently acquired by the pledgee and transferred for a good and valid consideration.

That the business of said corporation has been large and valuable, and its profits great; that it has continuously accumulated a surplus from its earnings, so that, as appears by the last report to the stockholders of said corporation, on January 1st, 1899, said company had a surplus over and above its capital stock, based upon estimated values (the said statement, under Section 5 of the charter, being made upon the oath of the president and secretary of said corporation), exceeding the sum of $143,000.00, thus making the capital stock of the value of $243.00 per share.

That the outstanding liabilities of said corporation, as appears by the aforesaid statement submitted by the president and secretary to the stockholders’ meeting on December 31, 1898, and which statement was under oath as aforesaid, amounted to the sum of $71,422.59; that, after making all allowances for the aforesaid liabilities, the capital stock of said corporation, and the surplus thereof, amounted to the sum of $243,603.72, all of which will more fully, and at large, appear by the aforesaid statement, a copy of which is annexed and made part hereof.

That it was the duty of'said Board of Directors, after making provision for the discharge of the company’s liabilities, to pro-rate and divide among the stockholders, who had invested their funds in said corporation, the profits and earnings thereof, and not by indirection and in violation of law, and without the sanction of the requisite vote of the stockholders, to attempt to increase the capital stock of said corporation, beyond the limit fixed in its charter, by setting aside from the earnings of said corporation the largest portion thereof, and dedicating it as a surplus fund, when, in the conduct of said business, there was no necessity for the same; and that the aforesaid acts of said Boárd of Directors controlling a majority of the stock were in bad faith and to the wrong and injury of the minority stockholders who were entitled to a fair and just distribution of said company’s earnings.

That the management in control of the stock and administration of said corporation, have, with the view, with the intent, and for the purpose of depriving the. minority stockholders of their right in and to a just and fair distribution, continuously set aside from the earnings of said company the funds realized from the conduct of said business, and constituted the same a surplus as aforesaid, in order that they might profit thereby, to the prejudice of the minority stockholders, and that the said stock of said corporation has no market value, and petitioner is unable to dispose of the same at anything approximating its value, notwithstanding the fact that he has made repeated efforts to sell said stock to those in control of said corporation, but who, knowing the disadvantage under which.petitioner labors (he having no voice in the administration of the affairs of said corporation, and the same being operated in their interest), have declined to purchase said stock, except at- a nominal price therefor.

That the capital stock of siiid corporation, under and by virtue of its charter, is fixed at the sum of $100,000.00, no provision being made in said charter for an increase of said capital stock, the only authority for any such increase being made by amendement of said charter in accordance with the provisions of law existing at the time of the organization of said corporation; and that upon the protection afforded to petitioner by the provisions of the charter, and the law controlling the same, he was induced to purchase stock in said corporation, being-advised that he was entitled to a fair and just distribution of the earnings of said company, and that it is bad faith on the part of said managing directors to deny petitioner his right to a participation in said fund, under the pretext of creating a surplus, and thereby indirectly increasing the total stock of said corporation without an. observance of the provisions of law in such cases made and provided as aforesaid.

That he is, therefore, entitled to an accounting through the instrumentality of a receivership herein of his proportion of the profits earned by said corporation, with interest at the rate of five per cent. per annum from the time when said profits should have been distributed among the stockholders of said corporation, but whieh were in bad faith withheld from petitioner and the minority stockholders similarly situated.

That the administration of the governing body of said corporation has been reckless and extravagant; that they have from time to time allowed salaries to those forming the “combine” or syndicate, largely in excess of the value of their services, thus operating to the prejudice of the stockholders of said corporation, and particularly of your petitioner and those similarly situated; that there is no provision in the charter of said corporation- according 'to the executive officers thereof salaries for their services, although empowered by said charter to appoint such officers, clerks and agents as they may deem necessary for the business of said company; that under the power so conferred by said charter, the compensation of the executive officers, if allowable, should be commensurate with the services rendered, and not extravagant in the interest of those controlling a majority of the stock and voting themselves large and extravagant compensation.

That the liabilities, as shown by the last annual statement of said corporation’s affairs, aggregate the sum of $71,000.00-; that had the administration of those in charge of said corporation been for the benefit and advantage of the stockholders generally, instead of those particularly favored by the parties in control, there would have been no indebtedness whatever at this time due or owing by said company, and that while said statement shows the alleged indebtedness, petitioner, at the proper time, will surcharge and falsify the same, and upon information, advice and belief, he now denies that the corporation is liable for the amount set out in said statement,. with accumulated 'interest thereon, at the highest conventional rate therefor.

That those in charge of said corporation and its administration and management, to-wit: Albert Baldwin, John IT. ITanna, Cartwright Eustisj and those combining and confederating with them, have; abused their trust in misapplying the moneys and property of said company to their personal advantage and benefit, and to the great wrong and'injury of petitioner and those similarly situated, as well as to the great wrong and injury of said corporation and the creditors thereof; that said parties thus combining and confederating have, from time to time, in closed meeting, appropriated to their personal use and under the guise of “donations” to each other, a total amount of upward of $33,000.00, and that said “donations” were, made at meetings of the directors, in which the said Baldwin, Hanna, Eustis, and others participated.

That on July 27th, 1885, John II. Hanna moved a “donation” to Albert Baldwin, for his services, in the sum of $3,000.00 of the corporation’s money; that said motion having- been carried, the said amount, as petitioner is advised, informed, believes and so charges, was paid out of the corporate fund; that at said.meeting, also in addition to the annual compensation allowed George A. Peete, secretary of said company, a “donation” of $300.00 was voted to him for his services as secretary, and which, as petitioner is advised, informed and believes, and so charges, was paid out of the assets and funds of said corporation, all the foregoing being to the great wrong and injury of petitioner as one of the stockholders of said company.

That at the annual meeting in 1886, a “donation’’ of $2,500.00 was voted to Albert Baldwin as president of said corporation, and having been carried, as appears by the minutes of said corporation, was, as petitioner is advised, informed, believes and so charges, given to said Baldwin out of the corporate assets and moneys, to the great wrong and injury of said corporation, and of your petitioner, as one of the stockholders thereof; that at the same meeting a “donation” of the corporate funds, to the extent of $1,000.00, was made to George A. Peete, for his services as general manager, in addition to the salary fixed for his services, and which amount, petitioner is advised, informed, believes and so- charges, was paid out of the assets and moneys of said company to the great detriment, wrong and injury of said corporation, and of your petitioner as one of the stockholders.

That at the annual meeting in 1887, the Board of Directors of said company, composed of the said Hanna, Baldwin, Eustis and others as aforesaid, a motion was made “donating” -to said Baldwin, as president, for'his services, the sum of $2,500.00; that at the same meeting there was voted to John II. Hanna, for services in the past, a “donation” of $2,000.00, and also a “donation” to George A. Peete, as additional compensation for his services of $1,000.00, all of which, as. petitioner is advised, informed, believes and so charges, was paid out of the property, funds and assets'of said corporation, to its great wrong and injury, and to the prejudice of petitioner and other stockholders similarly situated.

That at the annual meeting in 1888, the.corporation at all times being under the control of substantially the same Board of Directors, a motion was made and carried “donating” to Albert Baldwin, as president, the sum of $5,000.00; to John H. Hanna, the. sum of $2,000.00; to George A. Peete, the sum of $1,000.00; and to John E. King, the sum of $200.00, all of which “donations,” so characterized in the resolution of the Board, were, as petitioner is advised,- informed and believes, arid so avers, paid out of the corporate funds, to the great wrong' and injury of said corporation, and to your petitioner and other stockholders similarly situated.

That at their annual meeting in 1889, said directors undertook, in the absence of any charter provision, to fix the salaries of the president and vice-president, making the extravagant allowance of $5,000.00 for the office of president, and $2,500.00 for the office of vice-president, said salaries to commence with January, 1889, and to be payable monthly, and that said allowances for salaries were extravagant and unreasonable, considering the character of the employment, and the nature of the services performed, and considering further that said salaries were given to those who were in control of the stock of said corporation, and who practically voted thdmselves the colórate assets, to the great wrong and' injury of said corporation, and of your- petitioner as a stockholder thereof.

That on January 4th, 1890, at a meeting of said directors, a “donation” of $2,000.00 was voted to George A. Peete, as extra compensation for his services as general manager, and which amount, as petitioner is advised, informed, believes and so charges, was paid out of the funds and property of said corporation, to the great wrong and injury of petitioner as a stockholder.

That on January 3rd, 1891, in addition to the salary which said Albert Baldwin was drawing as president, and which was an extravagant allowance for the services rendered, and the duties charged upon him, and operating to the manifest wrong of the corporation and your petitioner, because of its extravagance, the said directors voted a “donation” of $1,000.00 to said Baldwin, a's president, and of $500.00 to John IT. Hanna, as vice-president, and which amounts, as petitioner is advised, informed, believes and so charges, were paid out of the funds of said corporation, to the great wrong and injury of said corporation and of your petitioner.

That he is informed, advised, believes and so charges, that said Albert Baldwin, as president, and John H. Hanna, as vice-president, continued to draw salaries fixed for their services, on the basis of $5,000.00 for the president, and $2,500.00 for the vice-president, from 1889 down to .1896, and that it was only in 1896 that the salaries of the president and the vice-president of said corporation were reduced to the sum of $100.00 per month, a fair, reasonable and just compensation for services rendered, and all they were legitimately entitled to out of the business and earnings of said corporation.

That the facts herein recited have only recently come to his knowledge, and since he became a stockholder in said corporation; that it would be useless and futile on his part to seek any relief from the Board of Directors in order to have them institute proper proceedings for the recovery of said money unwarrantably and illegally withdrawn from said corporation; that those who were the beneficiaries of said “donations” and salaries voted for the same, they owning a majority of the stock, and controlling said corporation, and have continued to control and direct said corporation as it presently exists/and that, therefore, your petitioner is relieved from demanding of them the institution of proceedings against themselves for the restoration and. restitution of the funds Unwarrantably, unjustifiably and illegally withdrawn from said corporation.

That from 3884 to 1890, the said corporation paid a dividend of twenty per cent, per annum, and created a surplus independent thereof; that it has, from 1892 to date, declared nominal dividends, increasing the surplus ai^d thus augmenting the capital stock without any resulting benefit or advantage to the minority stockholders, but holding them where they can have no voice in the administration of the aifairs of said company, nor make their investment -available or profitable, notwithstanding the great profits earned by said company in the operation of its business; that the action of said Board of Directors jeopardizes the rights of the minority stockholders by the gross mismanagement of the business and in refusing in bad faith to divide thcearnings and profits of said company, and by wasting, misusing and mismanaging the property and funds of said corporation; that in consequence thereof, the rights of the minority stockholders are in imminent danger, and the acts of said Baldwin, Eustis and others, destroy the value of petitioners’ property and his holdings in said corporation, except as to such value as said parties see fit to place upon the same or allow petitioner therefor.

That, as appears by the records of said corporation, large and valuable assets of said company were sold to a director' thereof at a nominal price, and petitioner is advised, informed, believes and so charges, that said director realized approximately the value of said assets, and that he should be made to account for whatever benefit or advantage he derived in the purchase of said assets, which was to the great wrong and injury of said corporation, and your petitioner and other stockholders similarly situated.

In view of the premises and annexed affidavit, petitioner prays that the Gullett Gin Manufacturing Company, through its proper officer, be cited and notified hereof to appear before this Honorable court and to show cause why a receiver should not be appointed to said corporation, so that the same may be administered for the equal benefit and advantage of all the stockholders and not alone those particularly in charge thereof; why said receiver should not.be vested with such powers of administration as the court may deem best for the interest of all parties, with the right to apply from time to time to the court for directions or the enlargement of his powers, and to institute such proceedings as he may be advised are necessary and proper to recover, for the benefit and advantage of the corporation, any funds, property or assets diverted therefrom, and why said receiver should not proceed to declare out of the surplus earnings of said corporation, after the payment of all just debts, a distribution of the earnings thereof; and petitioner further prays for all further and necessary orders and for general relief.

Defendant first excepted that the plaintiff had no cause of action, and under reservation of the same filed an answer in which, after pleading the general issue and making special denials of different allegations of the petition, averred thel validity of all its acts.

The exception of no cause of 'action was referred to the merits; the case went to trial, and, after hearing, the court rejected plaintiff’s petition and he appealed.

Opinion.

The only party defendant lin this case is the defendant corporation.

The effort of the plaintiff is to show that at various times, beginning in 1885, and particularly between the year 1885 and the year 1891, the Board of Directors of the corporation had voted to themselves, out of the earning's of the company, donations to an amount of over thirty thousand dollars; that no provision in the charter accorded to the executive administrative officers of the company salaries for their services; that the action of the Board in this matter was without authority, reckless, extravagant, ultra vires, ,-and greatly injurious to the corporation and the stockholders, and that the parties who had received such amounts should be made to return the same, and to show, secondly, that the business of the corporation had been large and valuable, and its profits great; that it had continuously accumulated a surplus from its earnings so that, as would appear by the last report to the stockholders on January, 1st, 1899, it had a surplus over and above its capital stock, based upon estimated values exceeding the sum of one hundred and forty three thousand dollars, thus making the capital stock of the value of $243.00 per share.

That it was the duty of the Board, after making provision for the discharge of the company’s liabilities, to have pro-rattíd and divided' among the-stockholders who had invested their means in the corporation the profits and earnings thereof; that, instead of making the division, the Board of Directors had extended the business of the corporation, and had unjustifiably applied the earnings of the company for that purpose, and in so doing had incurred a heavy debt; that the result of this course had been to prevent the stockholders from obtaining, of late, more than nominal dividends, to cut down the value of the stock'and to greatly prejudice the rights o£ stockholders.

That the course referred to had been followed intentionally and in bad faith to the injury of the minority stockholders.

In view of the premises, the plaintiff maintained that he was entitled to an accounting of his proportion of the profits earned by the corporation, with interest at the rate of five per cent, per annum, from the time when said profits should have been distributed among the stockholders, but which were in bad faith withheld from petitioner and the minority stockholders similarly situated.

The remedy which he declared he was entitled to under the circumstances was the obtaining of such an accounting, not through an action instituted by himself, but through a receiver whom he prayed the court to appoint, “so that the corporation be administered for the equal benefit of all the stockholders, and not alone those particularly in charge thereof.”

The prayer of the petition relative to the powers and duties of this receiver was, “that he should be vested with such powers of administration as the court might deem best for the interest of all parties, with the right to apply from time to time to the court for directions or the enlargement of his powers, and to institute such proceedings as he might be advised were necessary and proper to recover, for the benefit and advantage of the corporation, all funds, property or assets diverted 'therefrom; and to proceed to declare, out of the surplus earnings of said corporation; after the payment of all just debts, a distribution of the earnings thereof.”

In support of the course which he prayed to be adopted, plaintiff averred “that the facts which he recited had only recently come to his knowledge and since he had become a stockholder in the corporation; that it would be useless and futile on his part to seek any relief from the Board of Directors, in order to have them institute proceedings for the recovery-of said money unwarrantably and illegally withdrawn from the corporation; that those who were the beneficiaries of said donations and salaries had voted for the same, and had continued to control and direct said corporation as it presently exists, and, therefore, he was relieved from demanding of them the institution of proceedings against themselves for the restoration and restitution for the funds unwarrantably, illegally and unjustifiably withdrawn from said corporation.”

It will be perceived that the acts of wrong-doing and mal-administration which the plaintiff sets up, are not advanced contradictorily with the parties charged therewith and for the purpose of obtaining against them, for the benefit of the corporation, such judgment as the facts and the law would warrant, but for the purpose of substantially taking the administration of the affairs of the corporation out of the hands of its elected charter officers, and placing them under a receiver, not with presently defined duties, powers and responsibilities, but with duties and powers to be thereafter fixed by the court.

The- plaintiff does not ask the dissolution of the corporation, the winding up of its affairs, or the removal of the Board of Control. They were to remain in office, but under extraordinary conditions, bound to be attended with troubles, complications and disastrous results, even if such a dual administration would be permissible under the law.

Precisely why the beneficial legal results for the corporation, which the plaintiff declares he is seeking to obtain, and to which he might be entitled, could not be as fully and completely worked out by himself as a stockholder through proper proceedings, taken contradictorily with all parties in interest, we-can not see.

In plaintiff’s own brief it is said: “A single stockholder can institute suit for the benefit of the corporation where the directors act fraudulently,” and in support of that position he cites Beach on Corporations, 880-881; Fougue vs. Coard, 50 N. J. Eq. (reported in 24 Atlantic Rep., 504).

Minor vs. Belle Ice Company (a Michigan case), 53 N. W., 219; Morawitz on Corporation, Sec. 242; Cook on Stockolders, Sec. 741, and Estuiler vs. Stoel, 47 N. W. Rep., 361, where it was held that a complaint by a stockholder against the corporation and its officers and directors who held a majority of stock, charging- them with fraudulently diverting its property to their own use, by voting themselves salaries, and doing other illegal acts, is sufficient, without averring a demand upon the Board of Directors to correct the same, it would be idle to request them to redress the wrongs they themselves have committed.”

(32 S. E. Rep., 213, is cited as being to the same effect).

Even where a receiver has been appointed, under the law, by the comptroller to take charge of the assets of a national bank, a direct action by an individual stockholder has .been held right and proper where the receiver refuses to act. See note 1 to Section 239 of Morawitz on Corporations, 2nd Ed., where it is said that where the receiver refuses to bring suit against the directors of the bank to recover assets which have been misapplied or lost by misconduct of the directors, a shareholder may bring the suit by making the corporation and the receiver parties together with the directors against whom relief is sought. Brinckerhoff vs. Bostwick, 88 N. Y., 52; S. C. 23, Hun., 237; 99 N. Y., 185.

. We see no ground whatever for the appointment of a special receiver or a receiver as prayed for. (See on this subject Morawitz on Corporations, Sec. 447; Cook on Stock and Stockholders, 926; 33 Conn., 446; 18 H., 331; State of Louisiana vs. Bank of Louisiana, 6 La., 745; 157 U. S., 553; 3 Paige, 222; 7 Paige, 203; 29 Ala., 503).

As that is the only relief - prayed for, it would be useless for us to decide whether the funds alleged by the plaintiff have been shown to have existed or not, and, if shown, whether they would be of the character attributed to them by the plaintiff.

There are certain matters which it may not be amiss for us to allude to in a general way. Plaintiff is before the court as holder and owner of twenty-five shares of the capital stock of the defendant company, which he acquired from the Mutual National Bank in 1898. At the time, therefore, of this acquisition the action complained of, that the Board of Directors had voted themselves large amounts of money as donations for services rendered as officers of the company, was not of recent date.

It had occurred years before, and so, when plaintiff acquired his stock, the extension of the business of the company, through the application of its earnings to the purchasé of new and additional machinery and appliances, and the creation of the debt referred to, was an already existing condition and fact. The earnings of the company were represented by the improved and extended plant, and by bills receivable and open accounts. There were no monies to divide, and there was a heavy debt to meet.

There could be na division among stockholders until this debt should be met (Faurie vs. Millaudon, 3 N. S., 479). The policy by which the company had bought from time to time new machinery and appliances, instead of operating with the old plant of the Gullett Gin Manufacturing Company which it had purchased at the sale of its assets, and with which the new company had commenced business, might or might not have been judicious, but whether so or not, it was an accomplished, fact when the plaintiff bought his stock. It is not pretended that the price paid for it was more than it was actually worth, or that there was- any false representation as to it by any person. Whether a continuance of the business with the old plant, and on the same basis upon which it had been commenced by the company would have resulted in any earnings to divide, is problematical, and still more problematical if the earnings had been at once divided among stockholders as they were earned. The allegations of the plaintiff’s petition show that the business was ably conducted by the Board of Directors and resulted in a large surplus, and for a number of years in large dividends.

The dividends, though subsequently reduced, were not discontinued, and the cause of the reduction is explained by the expenditure of the earning's in the improvement and extension of the plant and business. The plaintiff has overlooked the fact that if the yearly earnings had been divided each year between the stockholders, they would, to the extent of the proportion of the same to which the twenty-five shares of stock now owned by himself would have been entitled, have been taken not by himself, but by Taylor, the original owner of that stock, and later by the bank holding the. same, first, as pledges under Taylor, and subsequently as owner by purchase, and the plaintiff has failed to consider to what extent the policy of extension and improvement, which he now condemns, has contributed to the making of the very earnings and profits which he says should have been divided.

It is true thtut that policy may have caused a temporary reduction of dividends, but all-the stockholders stood alike in that respect (the Board of Directors as well as the plaintiff), and while the present dividends have been reduced non constat, but that the future will disclose the wisdom of the course pursued by increasing dividends hereafter.

It is scarcely fair to judge of the correctness of a particular line of policy by selecting the condition of affairs of a corporation on a particular day, disregarding the past and ignoring the future. If matters have reached the point with-this company that its plant is now complete, and that it has been placed in position to operate hereafter without further outlays in That direction, the advantages of the past outlays, not now seen or appreciated, may be made to appear.

' The actual result remains to be seen. So far as this record shows no one other than plaintiff is complaining.

Receivership as a remedy looks rather to the prevention of future injuries than for the redress of past grievances. If plaintiff has just reason to complain of the course pursued by the Board of Control in the past, it strikes us that an injunction to prevent its further continuance would be a remedy more appropriate and proper than a receivership. 157 U. S., 553; 5 N. Y. (Sup.), 305.

The evidence shows that for a .large part of the time during which the Board of Directors voted what are designated as “donations” to some of their number, Taylor, the original owner of the stock, which is now held by the plaintiff, was a member of the Board of Directors, and participated in its action in that respect.

The amounts so' voted were for services performed for the company by the parties to whom they were voted.

Plaintiff contends that the amounts were voted after the rendition of the services; that the Board of Directors was without authority, under such circumstances, to grant them any compensation; that the action was ultra vires, null and void, .at that time, and it remains null and void.

Defendants’ position is that assuming as a fact (which it does not admit) that the act was not strictly authorized, it was an act not ultra vires of the corporation; that it was not an act beyond the power of the corporation- — itself to do; that, at worst, it would be ultra vires of the Managing Board, that is to say, an act beyond the authority of the Board of Directors, but within the powers of the corporation itself; that it was an act which could have been either originally adopted by a meeting of stockholders, or having been irregularly adopted by the Board of Directors could be legally ratified at a meeting of stockholders, or cured by acquiescence,

It maintains that Taylor having participated in this particular action, was estopped by that fact, as well as acquiescence, from urging anything against it, and that any one holding under or after Taylor would be also estopped, even though the latter might not have been estopped had the action which Taylor participated in or acquiesced in been an act ultra vires in its primary sense, that is to say -an act ultra vires the corporation itself.

We reserve expressing any opinion on this subject until it shall be brought before us for direct adjudication.

Eor the reasons which we have assigned, it is ordered, adjudged and decreed, that the judgment appealed from be and it is hereby affirmed.