Kinsman v. Fisk — 65 N.Y. St. Rep. 75

Majority

p. 75

Frank E. Kinsman, App’lt, v. Harvey Edward Fisk et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed January 18, 1895.)

Headnote

Corporations—Pledge.

A pledge by a corporation to secure a loan made to it is none the less valid because one of its directors induced his firm to make such loan when no one else would make it.

Appeal from an order denying a motion to continue an injunction pendente lite.

Edmund Luis Mooney, for appl’t; Charles Steele and Edward C. Perkins, for resp’ts.

The plaintiff sues as a stockholder, in behalf of the defendant company, claiming that an application to the directors to sue would be unavailing. His motion for an injunction pendente lite having been denied, he seeks á review of the decision on this appeal. The defendant the Kinsman Block-System Company, in December, 1893, was without funds to carry on its business, and had incurred obligafions amounting to about $4,000. It had no resources, except its treasury stock, which was unsalable; and it became imperatively necessary that money should be raised in some manner, or else the company must fail. Accordingly, at a meeting of the board of directors held December 21, 1893, it was resolved that the company should endeavor to borrow money oh the pledge of its treasury stock, and the following resolutions were passed:

11 Whereas, in view of the fact that the company has no money in its treasury, and is in immediate need of $4,000 to meet the current bills and settlements; and whereas, in order to prosecute its work, the company will be in need of further advances from time to time, until some paying contracts can be secured: Therefore, be it resolved that the president and treasurer are hereby authorized to pledge all or any part of the treasury ctock for moneys which they may need to borrow for company purposes from time lo time, and that they be, and are hereby, authorized to give the

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notes of tjie company for such advances, and to sign such notes, and authenticate them with the official seal.”

As the invention had not proved a success, which the corporation was formed to put on the market, and it had no property whatever, except the patents, and had already expended a large sum of money, its stock had no market value, and little, if any, real value. It was only possible, therefore, to obtain a loan from Harvey Fisk & Sons, who were interested, because ttiey had already invested a considerable amount of money in the corporation. They loaned the money bn the company’s demand notes, secured by a pledge of treasury stock. When the $4,000 had been used, more was needed to conduct the experiments, and more was-furnished, under like conditions, until $21,500 had been loaned. After a time the loan was called, but the company could not pay it, although several extensions were given it for the purpose. That Harvey Fisk & Sons were then willing, and still are, to take the money due to them, and surrender the stock, is unquestioned.

The appellant urges, in the first place, that the pledge was void because a director of the defendant company, who participated in the meeting at which the resolution was passed, and was influential in procuring Harvey Fisk & Sons to make the loan, was a member of that firm. While the law looks with disfavor upon contracts made between a director or officer of a corporation and the corporation, because it cannot accurately measure the influence of a 'trustee with his associates, no case has been brought to our attention which, goes so far as to hold that a pledge as collatral for a loan actually made by an officer or director to the corporation is void. .The authorities cited by the appellant, Munson v. Syracuse, G. & C. Railroad Co. 103 N. Y. 59 ; 3 St. Rep. 31 ; and Hoyle v. Plattsburgh & M. Railroad Co., 54 N Y. 314 , certainly do not support his contention. As appears from the resolution which we have quoted, the directors resolved to pledge, as collateral for loans to be made, its1 treasury stock. Harvey Fisk & Sons made the loan, and accepted the pledge. The corporation needed the money and used it. The pledgees have asked merely that the loan be paid. They seek no advantage by the contract of pledge, but simply such protection as it affords. They have on several occasions extended the time of payment, and it appears they are ready and willing to return the stock, if the loan made be paid. It is conceded that the pledge would be valid if made to an outsider. It is none the less valid because a director of the corporation induced his firm” to make a loan which no one else would make. Duncomb v. N.Y., H. & N. Railroad Co., 88 N. Y. 1 .

It is further urged that the pledge was invalid because contrary to a certain trust agreement which the parties attempted—but unsuccessfully, as appellant contends—to terminate. It appears that prior to 1892 the plaintiff, being the patentee of certain electrical inventions, and owner of the patents issued therefor, -sought the assistance of Harvey Fisk & Sons in their exploitation. The plaintiff having represented- that the sum of $20,000 would be ample to demonstrate the practicability and usefulness of his in

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vention, Fisk & Sons, on the faith of such representation, agreed to provide that amount by a nominal subscription, at par, for 200 shares of the new company’s stock. The plaintiff was anxious that the Fisks should agree to sell enough of the company’s stock to raise $100,000, but they refused to do so, on the ground that they could not offer such stock to their customers until its value had been practically demonstrated. They accordingly declined to, and did not, assume any obligation whatever, except to advance the sum of $20,000, which the plaintiff had represented was sufficient to demonstrate the value of his patents, and make the company’s stock marketable. The original negotiation contemplated that a certain amount of the new company’s stock should be left in its treasury for working capital; but when the agreement was actually formulated, it was deemed best, instead of returning such stock directly into the company’s treasury, to place it in the name of trustees, so that no question might be raised as to the stock being full paid, and also in order that the plaintiff and the Fisks might obtain a commission on future sales of such stock. Accordingly, the agreement provided for the transfer to this plaintiff and Pliny Fisk, as trustees, 6,940 shares of the stock of the company, upon the following trusts :

“One thousand shares thereof shall be offered for sale by the parties of the second part [Harvey Fisk & Sons] at par, and each subscriber thereto shall receive as a bonus, out of the said sixty-nine hundred and forty share, one other share of stock for each share which he may purchase. Ten per cent, of the proceeds of such sales shall be paid, as received, to the party of the first part, and five per. cent, thereof may be retained by or paid to the parties of the second part as a commission upon such sales. The balance shall be paid over by the said trustees to the treasurer of the corporation, for its own use. All stock in the hands of the trustees, not sold or disposed of as aforesaid, shall be held by the trustees for the use of the said corporation, and, from and after the sale of the said thousand shares, such remaining stock shall be sold by the trustees in such amounts as may be directed by the said corporation ; five per cent, upon the par value of said shares so sold shall be paid, as received, to the party of the first part; the parties of the second part shall receive a commission of five per cent, upon the par value of the stock so sold ; and the balance of the proceeds shall be paid over to the treasurer of the said company, for the use thereof, excepting, however, two hundred and fifty shares,” etc. . “* * * The said trustees shall not vote upon the said stock,oeither personally or by proxy. The said trustees are to receive no compensation for their services as such. In case, by death or otherwise, either of them, or any successor to the said trust, shall cease to be a trustee, a successor may be appointed, in writing, by the said company.”

The company was duly organized, with the plaintiff as president, Harvey Fisk & Sons paid the incorporation tax, paid the subscription of the several original subscribers to the stock, and also paid into the treasury $20,000, less the agreed commissions, as a nominal subscription for 200 shares of stock at par. An op

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portunity was obtained to place the experimental plant upon the Evanston Division of the St Paul Railroad. The plaintiff undertook the management of the business, but, after spending a great deal of time and a large portion of the company’s funds on the plant, the work resulted unsuccessfully. The Fisks thereupon entered into negotiations with the plaintiff, looking either to his or their withdrawal from the company, in the course of which they offered to sell their stock for the amount of money actually advanced by them to the company. This was not accomplished, but finally an arrangement was made by which the Fisks bought from the plaintiff, for cash, a sufficient amount of his stock to give them a majority of the outstanding stock of the company; and plaintiff, in turn, agreed to resign from the presidency, and accept the place of vice president or consulting engineer, with a salary of $5,000 per year. One of the objects of the new arrangement was the cancellation of the contract of January 14, 1892, which contained the provision relating to the so-called “trust stock,” which we have quoted; and the new agreement accordingly provided that the old contract should be canceled and terminated, except as to the provision reserving foreign rights of patents to the plaintiff. The new contract was fully consummated, and as a part of it, and for the purpose of putting an end to the trust-stock provision, a certificate for such shares, which had previously stood in the name of the plaintiff and one of the Fisks, as trustee, was indorsed by both of them, and transferred to the company, and was by the plaintiff himself surrendered to the company for cancellation ; a new certificate being issued in the name of the company, and placed in the company’s treasury. If it be assumed that the agreement of January 14, 1892, constituted a ¿valid trust, it was terminated on October 11, 1893, by the consent of all parties concerned; the beneficial interest of the company in the stock held by the trustees becoming merged in its legal title, which was acquired by the transfer of the stock. It was a trust which could be terminated by the combined action of the parties creating it,—the trustees and the cestui que trust— if the result aimed at was, as in this case, for the benefit of the cestui que trust. To accomplish that purpose, the parties to the original contract relinquished their right to commissions, the attempted limitations imposed were withdrawn, and so much of the stock as remained passed into the possession and control of the company by transfers duly made. All parties interested ac queisced, and the company proceeded to make use of the stock to meet its necessities. It is true that the company, the beneficiary, was not a formal party to the canceling agreement; but, so far as it was possible for it to do so, it confirmed and ratified the agreement by accepting the surrender of the old trustee certificate, and issuing anew one in its own name, and its acts of acquiescence and ratification were as effectual as if it had been a formal party to the contract. Butterfield v. Cowing, 112 N. Y. 486 -491; 21 St. Rep. 500 . But if it should be assumed that, as between the trustees and the cestui que trust, the trust agreement was not terminated, and the title to the trust stock vested in the cestui que trust,

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as we have held, still, the cestui que trust having accepted the stock from the trustees as its own, held it' out to another as such, and requested a loan thereon for its benefit, it cannot allege, in defense of a demand for payment, that the stock does not belong to it. Nor, is the plaintiff, who was a consenting party t» the transaction, through every stage of it, in any better position than the company because ■ he happens to be one of its stockholders. The order should be affirmed, with $10 costs and printing disbursements.

All concur.

Cases cited

Hoyle v. Plattsburgh & Montreal Railroad 54 N Y. 314 N.Y. Comm'n App. p. 76
Duncomb v. New York, Housatonic & Northern Railroad 88 N. Y. 1 N.Y. 1882-02-07 p. 76
Butterfield v. Cowing 112 N. Y. 486 N.Y. 1889-03-05 p. 78