Chalverus v. Wilson Mfg. Co.

• Decision Date: 09 October 1956
• Docket Number: No. 19443,19443
• Citation: 212 Ga. 612,94 S.E.2d 736
• Parties: Michael CHALVERUS et al. v. WILSON MANUFACTURING COMPANY et al.
• Court: Georgia Supreme Court

Page 736

94 S.E.2d 736

212 Ga. 612

Michael CHALVERUS et al. v. WILSON MANUFACTURING COMPANY et al.

No. 19443.

Supreme Court of Georgia.

Oct. 9, 1956.

Arthur F. Copland, Paul Blanchard, Columbus, for plaintiffs in error.

Max R. McGlamry, Theo J. McGee, Columbus, for defendants in error.

Syllabus Opinion by the Court.

HAWKINS, Justice.

The petition brought by Michael A. Chalverus and Margaret Chalverus, as minority stockholders, in behalf of themselves and other stockholders similarly situated of Wilson Manufacturing Company, a corporation, against that corporation, and against John M. Wilson, Harry F. Wilson, John Wright, Ford Lolley, and Agnes B. Wilson, as officers and directors of the corporation, alleges in substance: that the plaintiffs are the owners of 100 shares of the capital stock of the corporation, which consists of 729 shares; that the defendant John M. Wilson was elected president of the corporation, and in March, 1953, his salary was fixed at $100 per week; that about the 1st day of April, 1953, John M. Wilson entered the service of the United States Army and remained continuously in the service until March 1, 1955, during all of which time he was unable to render and perform the duties of president of the company, and that, during such absence of the president, the plaintiff Michael A. Chalverus 'performed and discharged all of the duties devolving upon the office of president of said company, and which had theretofore been performed by said John M. Wilson'; that notwithstanding the salary of the said Wilson was fixed by the directors in March, 1953, at $100 per week, and was not thereafter changed by the directors, he was paid $200 per week from the time he entered the armed services in 1953 until he returned from the army in March, 1955, although he did not render and perform the duties of president of the company, and that this was an unlawful and illegal payment of the company's money; that, during the first part of such army service, Wilson had authority to sign checks on the bank account of the company, and that he abused this privilege by drawing checks for his own personal use and appropriated and converted the funds of the company to his own personal use, the exact amount of such withdrawals being unknown to the plaintiffs, but being subject to computation, and that he should be required to account for and repay the same to the corporation. It is further alleged that the plaintiffs have acted promptly in an effort to obtain redress at the hand of the directors and stockholders of the company to have them take proper action to require Wilson to repay the moneys unlawfully received by him in unauthorized salary and funds withdrawn by him; that the plaintiff Michael A. Chalverus brought such matters to the attention of the stockholders and directors of the company at the regular annual meeting held in March, 1954; but that they have refused to take action; that it would be futile and useless to make further efforts to obtain redress from the defendants because of their ownership of a majority of the stock of the corporation; and petitioners pray: (a) for process; (b) that the defendant John M. Wilson account for the salary and funds illegally received and withdrawn by him; (c) that judgment be granted in favor of the defendant Wilson Manufacturing Company against the other named defendants in such sums as may be found to be due on an accounting; (d) that a receiver be appointed for the company; and (e) that plaintiffs have such other and further relief as to the court may seem meet and proper. To this petition the defendants filed their general demurrers, which were sustained by the trial court, and to this judgment the petitioners...