Bacon v. Irvine

Foote, C. This is an appeal from a judgment of non-suit and an order denying a new trial.

The plaintiffs, Henry D. Bacon and others, stockholders of the Morgan Mining Company; instituted an action in equity against that company, its president, Charles T. Botts, its treasurer, William Irvine, its superintendent, Robert Irvine, John Douglass, an employee, and James H. Wallace, Joseph M. Maguire, Robért Dixon, and T. K. Wilson, directors of said corporation. The purpose had in view by the plaintiffs in bringing their suit appears from the complaint to have been to procure the appointment of a receiver to take charge of the mine, and all the property thereto appertaining, and its products, and that each and all the defendants be compelled to account to the company; that an assessment before that time levied upon its capital stock be rescinded, and that an injunction be issued restraining the sale of any of said stock for the non-payment of said assessment, and for general relief.

It was charged against each and all of the board of directors, including its president, C. T. Botts, the treasurer, William Irvine, the superintendent, Robert Irvine, and John Douglass, who was the foreman of the mine, that they had embezzled gold produced from the mine to the extent of more than one hundred thousand dollars.

[224]The material allegations, charging conspiracy, fraud, or embezzlement, were denied by the answers of the several defendants.

So far as the proofs introduced by the plaintiffs on the trial of the cause (which was had before the court without a jury) threw any light upon the matter, it did not in the remotest degree connect Charles T. Botts, T. K. Wilson, James H. Wallace, Joseph M. Maguire, or Robert Dixon with any transaction whatever which showed them to have been guilty of the smallest degree of turpitude, or that they even had the least opportunity, in any connection whatsoever, to have been guilty of the charges made against them.

The evident effort, as disclosed by the proof adduced, was to show that William Irvine, Robert Irvine, and John Douglass had fraudulently appropriated a great amount of gold that had been obtained from the mine, so that they only of the defendants should be compelled to account for and pay over such products.

There appeared to be an end to the project of forcing the directors to any accounting, or to restrain the collection of the assessment on the capital stock.