Ching v. Serv. Cold Storage Co.

• Citation: 35 Haw. 306
• Decision Date: 15 January 1940
• Docket Number: No. 2383.,2383.
• Parties: RICHARD C. CHING AND JOHN R. COSTA v. SERVICE COLD STORAGE COMPANY, LIMITED, AN HAWAIIAN CORPORATION, T. F. FARM, HENRY T. AKUI, CLARENCE JIM, ALFRED D. AKI AND PAUL LAU.
• Court: Hawaii Supreme Court

35 Haw. 306

RICHARD C. CHING AND JOHN R. COSTA

v.SERVICE COLD STORAGE COMPANY, LIMITED, AN HAWAIIAN CORPORATION, T. F. FARM, HENRY T. AKUI, CLARENCE JIM, ALFRED D. AKI AND PAUL LAU.

No. 2383.

Supreme Court of the Territory of Hawai‘i.

Submitted January 5, 1940.

Decided January 15, 1940.

APPEAL FROM CIRCUIT JUDGE FIRST CIRCUIT. HON. A. M. CRISTY, JUDGE.

Syllabus by the Court

If, at the close of petitioner's case in an equity proceeding, it appears that the evidence adduced in behalf of petitioner is insufficient to sustain the bill, an order dismissing the bill will be sustained on appeal.

Where the evidence adduced is insufficient to establish any one of the material and necessary allegations, there is a failure to sustain the bill.

Cass & Silver on the briefs for petitioners-appellants.

C. S. Davis on the briefs for T. F. Farm, respondent-appellee.

R. J. O'Brien on the briefs for Service Cold Storage Company, Limited, Henry T. Akui, Clarence Jim, Alfred D. Aki and Paul Lau, respondents-appellees.

COKE, C. J., KEMP, J., AND CIRCUIT JUDGE BROOKS IN PLACE OF PETERS, J., DISQUALIFIED.

OPINION OF THE COURT BY KEMP, J.

Richard C. Ching and John R. Costa, the petitioners-appellants, are minority stockholders of Service Cold Storage Company, Limited, an Hawaiian corporation engaged in the manufacture and sale of ice cream and other activities. They exhibited their bill against said corporation and its board of directors. The gist of the material allegations of the bill is that the petitioner Ching is the owner and holder of 409 shares of the capital stock of said corporation; that the petitioner Costa is the owner of 10 shares of said stock; that the authorized and issued capital stock of said corporation is 1500 shares of the par value of $20 each; that the respondent T. F. Farm is the legal owner and holder of 744 shares of said capital stock and the equitable owner of an additional 25 shares standing in the name of his wife, and that he thus owns and holds a majority of the capital stock of said corporation; that through his personal and business relationship with other stockholders, to wit, Tai Lam Tyau, Clarence Jim, E. F. Farm, Paul M. Lau, Alexander Farm, Annie Hee, Alfred D. Aki, Henry T. Akui and L. Ah Wong, the respondent T. F. Farm exercises complete control and domination over the voting power of the shares of said stock exclusive of the 419 shares owned by petitioners; that the board of directors of said corporation is made up of T. F. Farm, president and director; Henry T. Akui, vice-president and director; Clarence Jim, treasurer and director; and Alfred D. Aki, director; that said board of directors is in entire control of the management and conduct of the business and assets of said corporation; that T. F. Farm owns and operates a dairy under the name and style of Aloha Dairy; that said corporation is mainly engaged in the business of manufacturing and distributing ice cream throughout the Territory of Hawaii and must necessarily purchase large quantities of milk; “that on or about April, 1933, respondents T. F. Farm, Henry T. Akui, Clarence Jim, Alfred D. Aki and Paul Lau entered into a conspiracy to gain control of the Respondent corporation to the exclusion of the minority stockholders, and to defraud the said corporation and the minority stockholders thereof; that, pursuant to the said conspiracy the said Respondents did gain control of the said business and the assets of the said corporation and thereafter and since the time of the said conspiracy have unlawfully and fraudulently misappropriated the funds of the said corporation and dissipated the assets of the said corporation by means of a fraudulent contract for the purchase of milk by the said corporation from the Respondent, T. F. Farm, doing business as Aloha Dairy as aforesaid, whereby an extortionate and unreasonable price was paid to the said Respondent for the said milk, to wit, a price of eleven cents per quart; that at no time during the time mentioned above has the price of similar milk for the purpose of making ice cream products in the City and County of Honolulu exceeded seven cents per quart, on the open market wholesale under term contracts, which price is the reasonable value of the products sold by said Respondent during said time to the Respondent corporation; that the difference between the said price of eleven cents per quart charged to the said corporation by the said Respondent and the reasonable and fair value of the same milk was and is a fraud upon the stockholders of the said corporation and payment thereof to Respondent, T. F. Farm was and is a misappropriation of the funds and assets of the corporation to his own use and benefit.”

It is further alleged, upon information and belief, that the...