Pennington v. George W. Pennington Sons

[58]

THE COURT.

This is an appeal from an order, which was the equivalent of a final judgment, denying plaintiff’s petition for a writ of mandate, commanding the corporation defendant and its president, the defendant Thomas Pennington, to restore the plaintiff to his position and salary as superintendent of the corporation, from which he had been removed by a resolution of the board of directors of the corporation at a meeting of the board which admittedly was regularly called in compliance with the by-laws of the corporation.

But one question of law is presented for consideration, and that arises out of the undisputed facts of the case, which are in substance as follows: On the eighth day of September, 1918, a meeting of the board of directors of George W. Pennington Sons, Incorporated, was held in the office of the corporation. There were present at this meeting four of the five directors of the corporation. At the time of this meeting there was a vacancy in the board of directors caused by the death of Mary Ann Pennington. The directors present at the meeting were Thomas Pennington, Edmund Pennington, George W. Pennington, and John Pennington. The meeting was called to order by Thomas Pennington, the president of the corporation, who, after appointing Edmund Pennington as acting secretary, offered a resolution providing that the plaintiff, George W. Pennington, be deprived of all salary as superintendent of the corporation from the date of the meeting. This resolution, after being seconded by Edmund Pennington, was put to a vote, Thomas Pennington and Edmund Pennington voting “yes,” and George W. Pennington and John Pennington voting “No.” Thereupon Thomas Pennington declared the resolution carried, and then proceeded to offer another resolution, which called for the removal of George W. Pennington from the office of superintendent of the corporation, and deprived him of all authority to sign checks and documents for or in the name of the corporation. The latter resolution was also seconded by Edmund Pennington; and upon being put to a vote was declared carried by the affirmative votes of Thomas and Edmund Pennington.

The only disputed question of fact in the ease is as to whether or not George W. and John Pennington were given an opportunity to vote upon the latter resolution. It is conceded, however, that the determination of this question of fact is immaterial to a discussion of the paramount point in the ease,