Boswell v. Mount Jupiter Mutual Water Co.

MOORE, P. J. Respondents’ action was brought to obtain a judgment that they are the duly elected directors of defendant corporation and that none of the individual defendants is [439]a director thereof. Findings were waived and the court decreed “that the purported election of April 19, 1948, was invalid”; that the directors of the water company are Lena Moss, Arthur Moss and Manuel Moss; that the board of directors of the corporation forthwith make available to plaintiffs a list of its shareholders with the names and addresses “of all the persons to whom stock has ever been issued”; and that the board of directors of the corporation “shall call a meeting of the stockholders of said corporation for the purpose of electing a board of directors . . . within thirty days from notice of entry of judgment; that the board of directors do every act necessary so that said meeting shall be a valid meeting of the shareholders of said corporation.”

It appears that at a shareholders’ meeting held on April 19, 1948, nominations of directors were made and a majority of the shares present were cast for appellants and defendant Whitney. Respondents challenged the election on the ground that many shareholders of record had not received notice of the meeting. While no finding was made of the number of the outstanding shares at the time of the April meeting the record discloses that levies of three separate assessments on the stock had been attempted at special meetings; that in many instances attempts were made to cancel shares for nonpayments of such attempted levies. Thereupon the holders of such stock as had been so cancelled were not given notices of the meeting to be held on April 19,1948. A document dated December 31, 1946, filed by defendants as an exhibit was mailed to the stockholders. From this it appears that in 1945 144 shares were cancelled leaving then 152 shares in good standing. During 1946, out of 211 shares, 123 were cancelled for nonpayment of assessments leaving only 88 shares on December 31, 1946, in good standing. In 1947 66 additional shares were issued and another assessment was attempted as a result of which 42 shares were cancelled leaving 112 shares in good standing on December 31, 1947.

But Arthur Moss, the secretary, testified that in 1947 “we sent notices to each stockholder that was in good standing as of the last assessment in 1946 ... we could not send assessment notices to all of them because all of them had not paid their assessments in ’45.” He further testified to taking off the 144 who had not paid assessments in 1945, the 123 who had not paid assessment in 1946, and 42 who had not paid in 1947 and sent notices only to the rest for the April meeting, 1948.