Glidden v. Diamond 66 Cattle & Dairy Co.

RICHARDS, J.,

pro

tem.

This is an appeal from a judgment of nonsuit and from ah order denying the plaintiff’s motion for a new trial. The action is one commenced by the plaintiff as a director and one of the stockholders of a corpo

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ration known as the Diamond 66 Cattle and Dairy Company against said corporation, the other four directors, and two other defendants named H. H. Peterson and R. H. McGinness, the latter two being the respondents herein. The purpose of the action as set forth in the complaint was to have set aside a certain bill of sale purporting to transfer all of the property of the corporation to the defendant Peterson, the plaintiff alleging that said purported transfer was illegal, because attempted to be authorized at a special meeting of the other four directors of the corporation held without proper notification, of the holding of which meeting said plaintiff was given no notice and at which he was not present; that the property of the corporation had thus been transferred to the defendant Peterson for a sum far less than its actual value, and that as a consequence the said corporate property was being dissipated, and the plaintiff’s stock, which had theretofore been worth ten dollars per share, rendered valueless. The defendant R. H. McGinness was made a party defendant because of a subsequent arrangement between himself and Peterson by which he was to assist in selling off the property, receiving therefor a share in the excess of profits above its purchase price. The defendant corporation and its four directors who were responsible for this transaction were duly served with process, but defaulted. The defendants Peterson and McGinness did not demur to the complaint, but answered, specifically denying all of its material allegations, but, after doing so, set up affirmatively certain averments in which the due execution of the bill of sale to Peterson was alleged and sought to be justified. The cause came to trial upon the issues as thus made up. The plaintiff proved the averments of his complaint as to the illegality of the meeting of the four directors of the corporation at which the transfer of its property had been sought to be authorized. He also proved by practically uncontradicted evidence that the said property of the corporation was worth several thousand dollars more than was agreed to be paid for it by Peterson.