Eckelkamp v. Diamonds, Inc., 33080
| Decision Date | 17 September 1968 |
| Docket Number | No. 33080,33080 |
| Citation | 432 S.W.2d 360 |
| Parties | Louis B. ECKELKAMP, Plaintiff-Appellant, v. The DIAMONDS, INCORPORATED, and the Estate of Spencer Irwin Groff, Deceased, Thomas W. Nelson, Executive Secretary of the Missouri Baptist Foundation, Executor, Defendants, Thomas W. Nelson, Executive Secretary of the Missouri Baptist Foundation, Executor, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Jenny & Cole, Union, Cox & Moffitt, St. Louis, for plaintiff-appellant.
Kay & Quigley, Eldon, for defendant-respondent.
This is an attempted action against a corporation called The Diamonds, Incorporated. Joined as defendant is Thomas W. Nelson, described as Executive Secretary of Missouri Baptist Foundation, Executor of the Estate of Irwin Groff, Deceased. A motion to dismiss the second amended petition for failure to state a cause of action was sustained and the plaintiff prosecutes this appeal.
The petition first alleges that the defendant The Diamonds, Inc., was a duly organized and acting corporation under the laws of the State of Missouri. It alleges that Groff was the president and treasurer of the corporation and a majority stockholder and that the plaintiff and a person named Key were minority stockholders. It states that plaintiff paid to Groff, treasurer of defendant corporation, $12,000 a year for many years. It is asserted that Groff withdrew money from the corporation without the consent of the shareholders and mingled the money with his personal funds.
It alleges that Groff died and that the charter of the corporation was forfeited by reason of failure to file a franchise tax report. It is asserted that all of Groff's assets are in the hands of his executor Thomas W. Nelson, and that some of this property belongs to The Diamonds, Inc. The plaintiff alleges that an accounting would be for the benefit of all of the stockholders. He alleges that he has made demand on all stockholders and directors and that the names of the last directors are unknown to him. He concludes by a prayer for an accounting.
As stated, the trial court dismissed the petition on motion for reason that it did not state a cause of action. The appellant, of course, here contends that the court erred in so doing. In support of his contention he cites us to several cases relating to suits by stockholders and among them are two cases by this court: Saigh ex rel. Anheuser-Busch, Inc. v. Busch, Mo.App., 396 S.W.2d 9; and Schick v. Riemer, Mo.App., ...
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