Fopiano v. Italian Catholic Cemetery Assn.

• Decision Date: 23 May 1927
• Citation: Fopiano v. Italian Catholic Cemetery Assn., 260 Mass. 99 (Mass. 1927)
• Parties: ALBERT B. FOPIANO v. ITALIAN CATHOLIC CEMETERY ASSOCIATION.
• Court: Supreme Judicial Court of Massachusetts

260 Mass. 99

ALBERT B. FOPIANO v. ITALIAN CATHOLIC CEMETERY ASSOCIATION.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1927

March 7, 1927.

Present: RUGG, C.

J., BRALEY, PIERCE CARROLL, & WAIT, JJ.

Corporation By-laws, Transfer of shares.

In a suit in equity against a Massachusetts corporation and one in whose name certain stock stood to require the defendant corporation to transfer the stock to the plaintiff and to issue to him a certificate thereof, it appeared that the individual defendant had delivered his certificate, with his signature attached to a form of a power of attorney thereon which was left unfilled, to one who had advanced the purchase price of the stock to him when he purchased it, but that no transfer was made to the third person on the books of the corporation that the by-laws of the corporation provided, in substance that, unless the board of directors waived the provision, no transfer should be made until stockholders had offered to sell the stock to the corporation, disclosing the consideration for the proposed sale or transfer and the name and address of the person to whom it was to be made and giving the corporation through its board of directors opportunity to purchase for a consideration to be determined by three arbitrators or to purchase at the price for which the stockholder proposed to sell; that the third person, first by notice signed by him personally and then by notice signed by an attorney for the individual defendant, made a request for transfer to the plaintiff under the provision of the by-law. Transfer was refused. Held, that

(1) The by-law was valid;

(2) The shares in question formed part of the capital stock of the corporation and were issued and held by its stockholders under the terms of the by-law;

(3) The bill could not be maintained against the individual defendant with whom the plaintiff had no contractual relations, nor against the corporation, which was not bound in the circumstances to recognize as a stockholder entitled to the issuance of a new certificate either the person who had furnished to the stockholder the money to purchase the certificate or the plaintiff.

BILL IN EQUITY, filed in the Superior Court on November 10, 1925, against the Italian Catholic Cemetery Association, a Massachusetts corporation, and Frank Leveroni, to require the defendant corporation to transfer twenty-nine shares of its capital stock to the plaintiff and to issue to him a certificate therefor.

The defendant Leveroni demurred; the demurrer was sustained by Morton, J., and the bill was dismissed as to that defendant by a decree from which no appeal was taken.

The facts were agreed upon. Material facts are stated in the opinion. The suit was heard upon the agreed statement of facts by Morton, J., by whose order there was entered a final decree dismissing the bill. The plaintiff appealed.

S.L. Bailen, for the plaintiff. H.E. Perkins, for the defendant.

BRALEY, J. The defendant corporation issued to the defendant Leveroni five certificates covering twenty-nine shares of its capital stock, each of which had on the reverse side the following indorsement required by article nine of the by-laws restricting the transfer of stock, and a blank power of attorney for transference by the holder. "No stockholder or the executor or administrator of a deceased...