Clay v. Union Wholesale Pub. Co.

• Decision Date: 22 December 1906
• Citation: 200 Mo. 665,98 S.W. 575
• Parties: CLAY et al. v. UNION WHOLESALE PUB. CO. et al.
• Court: Missouri Supreme Court

98 S.W. 575

200 Mo. 665

CLAY et al. v. UNION WHOLESALE PUB. CO. et al.

Supreme Court of Missouri. Division No. 2.

December 22, 1906.

APPEAL—RECORD—QUESTIONS PRESENTED FOR REVIEW.

Where it cannot be determined from the abstract of the record on appeal where the record proper ends and the bill of exceptions begins, and there is no statement as to the filing of the bill of exceptions, except one which appeared to be included in it, nothing is presented for review except the record proper.

Appeal from Circuit Court, Pettis County; George F. Longan, Judge.

Action by Moses Clay and others against the Union Wholesale Publishing Company and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

This cause is now pending in this court upon appeal from a decree and judgment rendered by the circuit court of Pettis county, Mo. The nature and character of this proceeding, as well as the defenses thereto, as disclosed by the record proper, may thus be briefly stated: This action was originally instituted by M. W. Clay, who brought the suit on behalf of himself and all other persons similarly situated, who might join in the proceedings and contribute to the costs and expenses thereof. The suit is brought by Mr. Clay as a stockholder of the Union Wholesale Publishing Company against the corporation and V. D. Snyder, president, and F. W. Stewart, secretary, in accordance with the provisions of sections 1338, 1339, and 1340 of the Revised Statutes of Missouri of 1899, alleging that the defendants are using the corporation as a means of defrauding various persons, and that the directors of the company have violated their duties and abused their powers as directors, trustees, and officers of the corporation, and have been guilty of gross misconduct in the management of the business, and are threatening to convey the remainder of the company's property. The relief prayed for was that the directors, managers, and officers be compelled to account for their official conduct in the management and disposition of the funds, property, and business of said company; that the court order and decree the payment by them to the company, or any receiver appointed therefor, of all sums of money and the value of the property which may have been acquired by themselves or transferred to others, or lost or wasted by the violation of their duties and the abuse of their power as such directors and officers, and that said directors and officers be suspended from exercising their offices, and that one or more receivers be appointed to take charge of the real estate or personal property owned, held, or claimed by the Union Wholesale Publishing Company, to account for the same to the stockholders of said company, and to preserve and keep the same intact for the persons who may be found entitled thereto, and that defendants, and each of them, be restrained and enjoined from conveying, transferring, or alienating any of the property, assets, or effects of said publishing company to any person whatever, and for such other and further relief as plaintiff, and those who might join in the action, might be entitled to in equity and good conscience.

Several persons came forward and intervened in the cause, among whom were E. D. Mott, J. B. Jeffers, and J. M. Jeffers. These three intervenors filed separate petitions, alleging a similar state of facts, and asked similar relief, namely, the intervenors alleged that V. D. Snyder and F. W. Stewart, by false and fraudulent representations, induced each of the intervenors to purchase stock of the par value of $1,000, representing that the same was fully paid up, and that the business of the corporation was legitimate and successful; and further alleging that the business of the corporation was fraudulent, and that illegal and dishonest contracts were being entered into, which the defendants did not intend to carry out, and had not the means of carrying out, and that the defendants Stewart and Snyder were mismanaging and misappropriating the assets of the company, and diverting money to their own use and jeopardizing the interests of the stockholders. The intervenors prayed for an injunction against the defendants, enjoining them from disposing or transferring the assets of the company, and that an accounting be had and a receiver appointed for said company, and such other and further orders and judgments as to the court might seem just and proper. The intervening petitions of the three intervenors are practically alike. The defendants filed an answer to the petition of Moses W. Clay, alleging that Mr. Clay represented to Snyder and Stewart that he was a man of large means, and that he desired to become engaged in the business of selling books, etc., and would subscribe for $10,000 of the capital stock of the company, and that he, with Snyder and Stewart, organized the Union Wholesale Publishing Company, and that Mr. Clay was one of the first directors, and that he took an active interest in the same, and conducted and had the management of its affairs and controlled the policy of the same. The answer further alleged that Mr. Clay had failed to pay for his stock, and that he had been notified by the directors in June, 1901...