Frazer v. Brewer

• Citation: 43 S.E. 110,52 W.Va. 306
• Parties: FRAZER et al. v. BREWER et al.
• Decision Date: 14 January 1903
• Court: Supreme Court of West Virginia

43 S.E. 110

52 W.Va. 306

FRAZER et al. v. BREWER et al.

Supreme Court of Appeals of West Virginia.

January 14, 1903

Submitted September 4, 1902.

Syllabus by the Court.

1. If on bill, answers, affidavits, and exhibits, the facts circumstances, and legal presumptions are strongly in favor of plaintiff's equity and of defendant's unfairness and duplicity, it is not error for the circuit court to continue a temporary injunction and receivership for the purpose of preserving the litigated property until the final hearing of the cause.

Appeal from circuit court, Monongalia county; John W. Mason, Judge.

Bill by James C. Frazer and others against David S Brewer and others. Decree for plaintiffs, and defendants appeal. Affirmed.

C. A Goodwin and B. & W. W. S. Meridith, for appellants.

G. C Sturgess, Cox & Baker, and Frazer & Frazer, for appellees.

DENT, P.

This is an appeal of David S. Brewer and others from a vacation order made by the Hon. John W. Mason, judge of the circuit court of Monongalia county, on the 17th day of April, 1902, overruling the motion of the appellants to dissolve the temporary injunction granted and discharge the receiver appointed in a certain chancery suit in said court pending wherein James C. Frazier and others were plaintiffs, and appellants were defendants.

The controversy--as appears from the record--between the parties is as follows: The plaintiffs together own and hold in their names, for the benefit of themselves and others, 150 shares of stock of the Iron City Oil & Gas Company, the plaintiff William Hill owning 38 shares by original purchase, and plaintiff James C. Frazier holding 91 shares, W. K. Given 3 shares, Leila J. Frazier 2 shares, Bryan Gordon 2 shares William Gordon 2 shares, and Robert E. Guy 2 shares, making 102 shares, which were acquired in the following manner: On the 15th day of February, 1902, Charles F. Boehler and Leopold Sigwart entered into a contract in writing with James C. Frazier, trustee, and E. M. Grant, manager of the Union Gas & Water Company, by which, among other things, the said parties of the first part agreed to deliver to the parties of the second part not less than 70 nor more than 102 shares of stock in the Iron City Oil & Gas Company, at the fixed price of $212.50 per share, on or before the 21st day of February, 1902. This was done on the last day named. James C. Frazier paid the price, and held th e shares assigned to the parties as aforesaid. James C. Frazier claims that, when this contract was entered into, it was understood and agreed between the parties thereto that the whole stock issue of the company only amounted to 172 shares, and that by his purchase he and those represented were to have full control and management of the company, with the right to reorganize the same, and that the directors and stockholders whose stock he was purchasing were to drop out and permit new directors to be appointed, nominated by said Frazier, and thus the affairs of the company were to pass to the control of the plaintiffs, as representing 140 out of 172 shares of stock. On the 8th day of March a stockholders' meeting was called for this purpose, as said Frazier supposed, when, to his surprise, the very stockholders and directors whose stock he had purchased in good faith turned up with 178 new shares of stock, issued by them on the 20th day of February, at the par value of $100, took possession of the meeting, and proceeded to organize the company to suit themselves, whereupon the plaintiffs withdrew with their 140 shares of stock, and effected an organization, and made demand for the books and assets of the company. Being refused this, they filed a bill in chancery to enforce specific performance of the contract had with Boehler and Sigwart, and to have the 178 shares of stock canceled as issued in fraud of their rights. They also had a temporary injunction issued to prevent the defendants from issuing further stock, and a receiver appointed to take charge of the property and preserve and manage it pending the litigation. Plaintiffs' claim is sustained by affidavits filed. Defendants David S. Brewer, Herbert W. Fleming, Cal. F. Boehler, Robert D. Bonilman, Joseph A. Marschner, and Leopold Sigwart, as individuals and officers of the company, filed their joint answer, in substance admitting the sale of stock as claimed by the plaintiffs, but denying that there was any contract, agreement, or understanding whereby they were to resign as directors, and permit others to be appointed in their places, to be named by said Frazier, or that there was any fraud against the plaintiffs contemplated or practiced in the issue of the 178 shares of stock, and claiming that in all respects they had acted...