Bell v. Montgomery Light Co.

• Citation: 15 So. 569,103 Ala. 275
• Parties: BELL v. MONTGOMERY LIGHT CO. ET AL.
• Decision Date: 17 May 1894
• Court: Alabama Supreme Court

15 So. 569

103 Ala. 275

BELL v. MONTGOMERY LIGHT CO. ET AL.

Supreme Court of Alabama

May 17, 1894

Appeal from chancery court, Montgomery county; John A. Foster Judge.

Bill by Smith Cullom against the Montgomery Light Company and another to set aside defendants' charter, and for an accounting. Cullom having died, the case was revived in the name of P. H Bell, administrator of his estate. A motion to dismiss the bill for want of equity was sustained, and plaintiff appeals. Reversed.

The bill, as originally filed, was by a stockholder, and prayed to have the charter of the Montgomery Light Company vacated and annulled, and to require Ignatius Pollak to account for money received by him, on bonds or otherwise, which belonged to the company, and for other relief looking to the remedy of grievous wrongs, which were alleged in the bill to have been perpetrated by the said Pollak and his associates, against the company and its stockholders.

J. M Chilton, Thos. H. Clark, and Sumter Lea, for appellant.

Tompkins & Gray, for appellees.

HARALSON J.

The defendant pleaded to the bill as originally filed, that the whole interest of the complainant in the suit did not equal $20, and this court had no jurisdiction of the case made by the bill; that all the other stockholders in said company, and all persons interested therein other than complainant, had been cognizant of the change in the name of said company, of the increase of its capital stock and of the issuance of its bonds, and had made no objection to the said several acts, but, on the contrary, had indorsed, ratified and confirmed the same, and made no complaint thereof. The record shows, also, that the defendant demurred to the bill on grounds questioning its equity, and moved to dismiss it for want of equity. At the April term, 1892, as appears, the cause was submitted on a motion to dismiss for want of equity, on the demurrer, and on the plea and its sufficiency with an admission of the truth of the plea. The cause was held up, on such submission, for decree in vacation. The court rendered its decree, holding that there was no equity in the bill, and that the plea,-on an admission of the complainant, that the facts stated in it, were true, presented a good defense; and, upon consideration, it was ordered, that the cause be dismissed, unless, during the term, an amendment, sufficient to give the bill equity, should be offered. The complainant, accordingly, sought and amended his bill-First. By adding the averments, that the nominal or face value of the stock held by him, was $8, but that its actual value, was $100; that notwithstanding the fraudulent acts and purposes of said Pollak in procuring said amendments to the charter of the Montgomery Gas Light Company, including its change of name, the act of the judge of probate in the matter was valid, and its validity was not questioned by the bill, especially so, as some of the bonds issued had passed into the hands of bona fide purchasers for value; that the legal title to the property of the Electric Light Company passed, under the purchase mentioned in the original bill, and the validity of said purchase was not questioned; but that said Pollak, while controlling both companies, as alleged in the original bill, sold said property to the Montgomery Light Company, at a sum greatly in excess of its value. Second. By striking out the prayer for special relief, as found in the original bill, and inserting in lieu thereof, the prayer, that said Pollak be made to account for and pay over the proceeds of the sale of $125,000 of bonds sold by him and which belonged to said company; that a reference be ordered to ascertain the real value of the property sold by the Electric Light Company to the Montgomery Light Company, at the time of the sale; that if it should appear that said Pollak or said Montgomery Light Company, sold the same for more than it was worth, and that the trade was unfair, the said Pollak be required to turn over for cancellation (if he still owned the same) so much of said stock and bonds as should appear to be in excess of the true value of said property at the time of said sale, the proportion between the stock and bonds received by him, being considered and observed in the matter of such cancellation, and, if...