Frazier v. Brewer
| Citation | 52 W.Va. 306 |
| Parties | James C. Frazier, et at. v. David S. Brewer, et al. |
| Decision Date | 13 December 1902 |
| Court | Supreme Court of West Virginia |
1. Temporary Injunction Duplicity.
If on bill, answers, affidavits and exhibits, the facts, circumstances and legal presumptions are strongly in favor of plaintiffs' equity and of defendants' 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. (p. 308).
Appeal from Circuit Court, Monongalia County.
Bill by James C. Frazier and others against David S. Brewer and others. Decree for plaintiffs, and defendants appeal.
Affirmed.
C. A. Goodwin and B. & W. W. S. Meredith, for appellants.
G. C. Sturgiss, Cox & Baker, and Frazer & Frazer, for appellees.
Dent, President:
This is an appeal of David L. 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, one hundred and forty shares of stock of the Iron City Oil and Gas Company; the plaintiff William Hill owning thirty-eight shares by original purchase; and plaintiff James C. Frazier holding ninety-one shares, W. K. Given three shares, Leila J. Frazier two shares, Bryan Gordon two shares, William Gordon two shares and Robert E. Guy two shares, making one hundred and two shares which were acquired in the following maimer:
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 and 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 seventy nor more than one hundred and two shares of stock in the Iron City Oil and Gas Company at the fixed price of two hundred and twelve dollars and fifty cents 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 had the 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 one hundred and seventy-two 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 one hundred and forty out of one hundred and seventy-two 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 one hundred and seventy-eight new shares of stock issued by them on the 20th day of February, at the par value of one hundred dollars, took possession of the meeting and proceeded to organize the company to suit themselves. Whereupon the plaintiffs withdrew with their one hundred and forty 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 Bochler and Sigwart, and to have the one hundred and seventy-eight shares of stock cancelled 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. Plaintiff's claim is sustained by affidavits filed. Defendants Daviel 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 plaintiff, 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 one hundred and seventy-eight shares...
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