Essential Enterprises Corp. v. Automatic Steel Products, Inc.

• Citation: 164 A.2d 437,39 Del.Ch. 371
• Parties: , 82 A.L.R.2d 957 ESSENTIAL ENTERPRISES CORPORATION, a corporation of the State of Delaware, Plaintiff, v. AUTOMATIC STEEL PRODUCTS, INC., a corporation of the State of Delaware, Frank B. Johnston, Henry G. Hotchkiss and John R. Maher, Defendants.
• Decision Date: 22 September 1960
• Court: Court of Chancery of Delaware

Page 437

164 A.2d 437

39 Del.Ch. 371, 82 A.L.R.2d 957

ESSENTIAL ENTERPRISES CORPORATION, a corporation of the State of Delaware, Plaintiff, v. AUTOMATIC STEEL PRODUCTS, INC., a corporation of the State of Delaware, Frank B. Johnston, Henry G. Hotchkiss and John R. Maher, Defendants.

Court of Chancery of Delaware, New Castle County.

Sept. 22, 1960.

Louis J. Finger of Richards, Layton & Finger, Wilmington, for plaintiff.

Henry Horsey of Berl, Potter & Anderson, Wilmington, for individual defendants.

SEITZ, Chancellor.

This action was commenced as one under 8 Del.C. § 225 by a majority stockholder of the corporate defendant to determine the validity of action taken to remove certain directors and the election of others to replace them. By a cross-claim the right of the board to remove its then chairman Johnston was also raised.

The court determined that the three directors involved were invalidly removed and in consequence their successors were not validly elected. The court also determined that the chairman of the board was invalidly removed on June 2, 1959 but was validly removed at least on July 21, 1959. See Essential Enterprises v. Automatic Steel Products, Del.Ch., 159 A.2d 288. Certain matters raised by cross-claims were left for subsequent determination and this is the decision thereon. No jurisdictional question is raised.

The first question is whether the corporation should be required to pay the chairman's salary for the period between the date he was invalidly removed and the date of his lawful removal from office.

The corporation argues that the board's ratification of the earlier invalid removal relates back so as to deprive the officer of his interim salary, at least where, as here, the original removal was invalid solely for lack of a quorum and where the officer performed no services in the period. No issue of lack of contract is raised. The removed chairman argues that since he was admittedly removed 'without cause' and prevented from performing the services required of a chairman, there is no reason why he should be deprived of his salary.

There can be no question but that in certain situations a ratification may relate back so as to bestow legality on an earlier invalid act. The question is whether this is an appropriate case for the application of that doctrine. The parties seem to believe that the answer lies in the determination of the issue as to whether the original action was void or voidable. I do not believe it is profitable to approach the matter from that point of view because even if the original action was only voidable, the invalidly removed director may be entitled to compensation on the basis of the equities.

The corporation says that the equities support its position and do not favor the removed officer. It emphasizes that the officer did not perform any services for the corporation during the perior in question. To accord recognition to this alleged equity would be to put a premium on invalid action and discourage such officials from vindicating their rightful positions. The Court does not believe the law should encourage action which has such consequences particularly where, as here, the discharge was admittedly without cause. The authorities seem to support the proposition that an officer improperly discharged is entitled to his salary in the period between his legal and illegal removal. Compare 5 Fletcher Cyc. of Corps., §§ 2146, 2168. Implicit in this is the fact that ratification could not defeat such right. Compare Gentry-Futch Co. v. Gentry, 90 Fla. 595, 106 So. 473; 19 C.J.S. Corporations § 738(4) c. It comes with poor grace to say that the chairman did not perform his duties when those who removed him by their invalid action, in a practical sense, prevented him from performing such duties. No issue of minimizing damage is involved.

I conclude that Johnston is entitled to his salary for the months between his invalid removal and his legal removal. The ratification did not validate the prior action to the extent of defeating the chairman's claim for compensation.

The next matter to be considered is the compensation claim of the illegally removed directors for the ten month period when they were treated as though they were no longer the legally elected directors.

The corporation says that they are not entitled to receive compensation whether it be considered as salary or fees for attendance at directors' meetings because they failed without valid excuses to attend a single board meeting.

The facts show that the three directors were told that they had been removed but were advised that they were free to attend directors' meetings until such time as the propriety of their removal was judicially determined. They were told their votes would be noted but that they would not be counted in determining what constituted effective action by the majority of the directors. They received notice of the meetings.

The directors in question claim that in the first place the compensation they seek is not based on attendance at meetings. They point to minutes of the directors' meeting held November 5, 1959 in which it is provided as follows:

'Regular stipulated compensation of directors

'Upon motion duly made and seconded, it was unanimously

'Resolved, that each Director shall continue to be paid the regular annual compensation of $1,200.'

Moreover, the corporation's by-laws provided as follows:

'Regular stipulated compensation and fees of directors

'Each director shall be paid such regular stipulated compensation, if any, as shall be fixed by the Board of Directors, not to exceed $1,200 annually, and/or such fee, if any, for each meeting of the Board of Directors which he shall attend as shall be fixed by the Board of Directors. * * *'

It seems clear from the quoted material that the fixed compensation of the directors was different from fees for attendance at directors' meetings. The corporation's position seems to be that the individual defendants did not give the corporation anything of value and so they should not receive the stipulated compensation. It says that by failure to attend the meetings they failed to perform their fiduciary duty to keep themselves apprised of corporate affairs, etc.

Basically, the corporation is saying that because the individual defendants were told that they might attend the meetings and have their vote recorded, though not considered, in connection with the corporation's affairs, their failure to attend all such meetings deprives them of a claim to compensation. Thus, once again we find the corporation resisting compensation even though the claimants were prevented from performing at least part of their corporate functions because of the invalid action of the other members of the board. Certainly, the conditions imposed would only encourage friction and further corporate disunity.

The real issue is whether the defendants should be deprived of their compensation as fixed in the resolution because they did not attend meetings under the circumstances described. I say this realizing that the compensation was not the same as their fees for attending meetings. This issue presents varying policy considerations but it seems to me that basically the determination of the issue must follow the decision on the merits of the original removal. Any other action would tend to encourage undesirable action by those unproperly assuming control. It would also place an undue burden on officials who feel that they should resist activity which they consider to be illegal. There is no suggestion that the claimants could have minimized their damages here.

I therefore conclude that the three directors who were illegally removed are entitled to their compensation and that the plan to permit them to have limited participation in board meetings did not require them to accept such conditions or be deprived of their...