Botts v. Simpsonville & B. C. Turnpike Co.

• Decision Date: 18 December 1888
• Citation: 88 Ky. 54,10 S.W. 134
• Parties: BOTTS et al. v. SIMPSONVILLE & B. C. TURNPIKE CO. et al.
• Court: Kentucky Court of Appeals

10 S.W. 134

88 Ky. 54

BOTTS et al. v. SIMPSONVILLE & B. C. TURNPIKE CO. et al.

Court of Appeals of Kentucky.

December 18, 1888

Appeal from circuit court, Shelby county; S.E. DE HAVEN, Judge.

John Botts and others, who are stockholders in the Simpsonville &amp Buck Creek Turnpike Company, brought this suit against the Simpsonville & Buck Creek Turnpike Company and its directors and against the Simpsonville & Fisherville Turnpike Company and its directors, to enjoin and prevent a threatened consolidation of the two defendant turnpike corporations. Plaintiffs were granted a temporary injunction, which was dissolved after answer had been filed by defendants. From the order dissolving the injunction plaintiffs appeal.

J. G Gilbert, for appellants.

J. C Beckner, for appellees.

PRYOR J.

The appellants are members as stockholders of the Simpsonville &amp Buck Creek Turnpike Company. On the 20th of February, 1884, the legislature of the state passed an act authorizing the consolidation of the corporation of which they are members with another company styled the "Simpsonville & Fisherville Turnpike Company." The appellants, in order to prevent a consolidation of the two companies, filed their petition in equity against the directors of both corporations, and against each corporation, asking for an injunction preventing the merging of the two companies into the consolidated company. An injunction was granted, and afterwards dissolved, on the answer filed by the defendants, to the effect that the consolidation had been made, as provided by the act, by the two boards of directors, and ratified by the stockholders, and nothing remained to be done but the election of directors for the consolidated company. The appellee maintains that, this answer or its averments not being denied, a dissolution of the injunction on the pleadings necessarily followed. The act under which the consolidation was made provided that, when the agreement between the board of directors of each company was entered into and ratified by a majority of the stockholders of the two companies, the consolidated company is to have all the powers heretofore enjoyed by both companies. The answer nowhere alleges that these appellants ever consented to the consolidation, and the statement that it was ratified by the stockholders must be taken as the act of the majority and not the whole. The stock of the appellants in one company has been transferred to another, or both merged into one, and the court will not imply, from an averment that it was ratified by the stockholders, that it was by the unanimous consent of all; for, if so, it should have been so pleaded, and the statement made must be construed as meaning that a majority voted for the consolidation; in other words, that the...