Feick v. Hill Bread Co.

• Decision Date: 11 April 1918
• Citation: 91 N.J.Law 486,103 A. 813
• Parties: FEICK v. HILL BREAD CO. et al.
• Court: New Jersey Supreme Court

103 A. 813

91 N.J.Law 486

FEICK

v. HILL BREAD CO. et al.

Supreme Court of New Jersey.

April 11, 1918.

Alternative writ of mandamus on the relation of Bertha E. Feick, as executrix of Charles A. Feick, deceased, against the Hill Bread Company and another. On demurrer to the return. Demurrer sustained, and peremptory writ allowed and directed to issue as prayed for.

See, also, 99 Atl. 851.

Argued November term, 1917, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Pitney, Hardin & Skinner, of Newark (Edward Stanley, Jr., of Newark, of counsel), for relator. Prank E. Bradner, of Newark, for defendants.

KALISCH, J. An alternative writ of mandamus requiring the defendant company, and its president, John J. Hill, to show cause why they should not permit the relator, with the aid of an expert accountant, to examine all the books, including books of account and books of the minutes of the proceedings of the directors and stockholders of the company, and all papers and documents in the possession of the company relating to and concerning the business and financial affairs of the company, was directed against them; permission to make such examination having been refused by the defendant company's president. Although the writ was directed to the defendant company and John J. Hill, its president, the return is made by the company alone; Mr. Hill remaining silent. To the return made, the relator demurred.

1. The defendant company sets up in its return that Mr. Hill as president had no authority to permit such an examination as asked for, and that the relator by demurring admits the truth of the statement. It is manifest that the bare statement in the return, that Mr. Hill had no authority as president, is a mere conclusion of law, and therefore the demurrer has not the legal effect contended for by defendant, namely, to admit the truth of the statement.

2. It is said in the return that no demand was ever presented by the relator to the board of directors of the company requesting such permission to examine the books, and it is therefore claimed that since this fact is admitted by the demurrer, the relator's right to the relief prayed for is barred. The answer to this is threefold:

(1) It is true that the demurrer admits that no such demand was made, but that fact is immaterial, for it was not necessary as a basis for the present application. Garcin v. Trenton Rubber Mfg. Co., 60 Atl. 1098; People v. Throop, 12 Wend. (N. T.) 184. The return in the present case inferentially admits that such a demand in writing was made upon the president of the defendant company. High on Extraordinary Legal Remedies, in his treatise on the writ of mandamus, on page 217, § 311, says:

"As regards the person to whom the writ should be directed where inspection of corporate records is sought, the proper practice is to address it to the one actually having the custody of the books and records, even though he is merely a ministerial officer acting under the direction of others, as in the case of a bank cashier acting under a board of directors. In such case the rule applies that the writ should run to the particular person who is to perform the act required, and the cashier having charge of the books, his refusal to allow their inspection is his individual act, and the writ is therefore properly addressed to him, though there can be no impropriety in such a case in directing the writ also to the board of directors."

(2) It appears from the return that there was no board of directors qualified to act.

(3) The statement that the relator prevented an election is a mere conclusion based upon undisclosed facts. For aught that appears in the return, the prevention of the election was the exercise of a lawful act.

3. It is asserted in the return that the president never denied the relator's right to examine the books personally or with the assistance of Mr. Feick and Mr. Prieth, but refused any accountant or person not connected with the company to examine the books, and has stated that he had no authority to give such permission. This is clearly an express admission of the very facts upon which the relator bases her application. The defendant does not attempt to justify the refusal of its president to permit the examination applied for, on the ground of lack of authority in that official to grant it, but, in effect, asserts that the relator is not entitled to such an examination, with the...