Hyman Mercantile Co. v. Kiersky, 34739

CourtMississippi Supreme Court
Writing for the CourtGriffith, J.
Citation198 So. 574,192 Miss. 195
PartiesHYMAN MERCANTILE CO. et al. v. KIERSKY et al
Decision Date08 December 1941
Docket Number34739

198 So. 574

192 Miss. 195

HYMAN MERCANTILE CO. et al.
v.
KIERSKY et al

No. 34739

Supreme Court of Mississippi

December 8, 1941


November 11, 1940

Suggestion Of Error Overruled January 12, 1942.

APPEAL from the chancery court of Pike county, HON. R. W. CUTRER, Chancellor.

Suit by Bernard Kiersky and another against the Hyman Mercantile Company, a corporation, and others, to have the corporate defendant dissolved and liquidated and a receiver appointed to take charge for that purpose. From a decree for complainants, the corporation and all of its stockholders, except complainants, appeal. On motion to allow supersedeas bond, motion granted, and appeal bond fixed at $ 23, 000. On the merits. Reversed with judgment for appellants.

Appeal sustained. Reversed and judgment here.

Hutchison & Hutchison, of Summit, and Lotterhos & Travis, of Jackson, for appellant.

The seller's call cotton transactions are not illegal, but, to the contrary, are thoroughly legitimate, valid and proper transactions. An examination of the Mississippi statutes, the Mississippi authorities, and of the general texts dealing with this subject matter discloses that, provided there is an actual bona fide sale and delivery of cotton or other commodity, it is perfectly proper and legal for the final price to be contingent at the time of sale and delivery and subject to final fixation at a later date.

See Code of 1930, Sees. 959, 1828, 1830, 1835.

The following Mississippi cases show that the transaction condemned under the statutes of Mississippi is a sale for future delivery in which it is contemplated that a settlement will be made based on the market, without an actual bona fide sale and delivery of the commodity: Ascher & Baxter v. Moyse Co., 101 Miss. 36, 57 So. 299; Cohn v. Brinson, 112 Miss. 348, 73 So. 59; Alamaris v. Clark & Co., 166, Miss. 122, 145 So. 893; Knox v. Clark, 177 Miss. 195, 171 So. 340; Campbell v. New Orleans National Bank, 74 Miss. 526, 21 So. 400, 23 So. 25; Western Union Telegraph Co. v. Little John, 72 Miss. 1025, 18 So. 418; Burgson & Co. v. Williams & Co., 155 Miss. 351, 121 So. 817; Stroud v. Loper, 190 Miss. 168, 198 So. 46; 27 C. J. 1062, 1067; 24 Am. Jur., Sees. 27, 66, 68, 71, 72.

The chancery court has no jurisdiction to liquidate and place in receivership a solvent, going corporation.

See Brent v. B. E. Brister Sawmill Co., 103 Miss. 876, 60 So. 1018; Benjamin v. Staples, 93 Miss. 507, 47 So. 425; 13 Am. Jur., Sees. 1295, 1296, 1297.

It seems hardly necessary to enter upon an argument based on the facts in this case, because it is so clear that no ground for receivership or dissolution was developed. There is no allegation nor any attempt at proof of insolvency of the corporation, but, to the contrary, the audit shows clearly that the corporation is solvent and in a sound condition. Furthermore, there is no debate about the fact that the corporation is a going concern engaged in business actively and pursuing the course intended by its incorporators and subsequently followed by it throughout the years of its existence. Hence under the Mississippi statute there is no cause for a liquidation of the corporation through a receivership or otherwise.

A. A. Cohn, of Brookhaven, and Cassidy & McLain, of McComb, for appellees.

Formerly the courts almost universally held that in the absence of a statute courts of equity had no inherent power to dissolve a solvent corporation. The trend of modern decisions is to the effect that local corporations, and especially those corporations, although solvent, so limited as to partake of the nature of copartnerships, should be dissolved by courts of equity and placed into receivership, even at the instance of minority stockholders, where any one or more of the following elements exist: gross mismanagement, fraud, serious dissension among the stockholders, inevitable ruin, failure of corporate purpose and other equitable reasons.

See Tower-Connellsville Coke Co. v. Piedmont Coal Co., 64: F.2d 817; Dill v. Johnston (Okla.), 179, P. 608; Enterprise Printing & Publishing Co. v. Craig et al. (Ind.), 135 N.E. 189; Henry et al. v. Ide et al. (Ala.), 96. So. 698; Goodwin et al. v. Milwaukee Lithographing Co. et al. (Wis.), 177 N.W. 618; Green v. National Advertising & Amusement Co. et al. (Minn.), 162 N.W. 1056-1058; Brent v. B. E. Brister Sawmill Co., 103 Miss. 876, 60 So. 1018; 43 A.L.R. 244-268; 61 A.L.R. 1214-1224; 91 A.L.R. 665-678.

We respectfully submit that in the light of the authorities hereinbefore set forth, and more especially the decisions of the Supreme Court of this state, the chancery court had full and ample authority and power to appoint a receiver in this case and to authorize the liquidation of the corporation.

Argued orally by F. J. Lotterhos, for appellant, and by W. G. McLain, for appellee.

Griffith, J., Anderson, J., delivered the opinion of the court on the merits.

OPINION

[192 Miss. 199] Griffith, J.

The Hyman Mercantile Company is a corporation with a capital stock of $ 45, 000 par value. The two complainants own $ 11, 500 of this stock, or approximately one-fourth. They filed their bill complaining that the owners of the other three-fourths of the stock were unfriendly to complainants, and that the others were participating in the mismanagement of the affairs of the company in such divers ways, specifying them, that the value of the stock would soon be destroyed. Complainants prayed that a receiver be appointed to take over all the assets of the corporation, to convert them into cash, and thereupon that complainants should have their distributive share of the proceeds in proportion to their stock ownership. There are no other complainants.

The defendants answered and denied every allegation as to mismanagement or which otherwise would justify the relief prayed. On the hearing the court decreed in favor of the complainants, appointed a receiver and...

To continue reading

Request your trial
2 practice notes
  • Hudson v. Belzoni Equipment Co., No. 37780
    • United States
    • United States State Supreme Court of Mississippi
    • March 19, 1951
    ...876, 60 So. 1018, 43 L.R.A.,N.S., 720. That case was cited by the court in the case of Hyman Mercantile Company et al. v. Kiersky et al., 192 Miss. 195, 198 So. 574, 4 So.2d 881, 883. The court, after quoting [211 Miss. 188] from the Brent case said: 'The appellant argues that Sections 4173......
  • Feliciana Bank v. Manuel & Sessions, L.L.C., No. 2005-CA-01296-COA.
    • United States
    • Court of Appeals of Mississippi
    • November 21, 2006
    ...reserving the timber, [it] thereby conveyed the timber, for ordinarily timber is a part of the land on which it stands." Albritton, 198 So. at 574. Since growing timber is part of the realty, a conveyance of the realty without excepting the timber will also convey that ¶ 12. The deed of tru......
2 cases
  • Hudson v. Belzoni Equipment Co., No. 37780
    • United States
    • United States State Supreme Court of Mississippi
    • March 19, 1951
    ...876, 60 So. 1018, 43 L.R.A.,N.S., 720. That case was cited by the court in the case of Hyman Mercantile Company et al. v. Kiersky et al., 192 Miss. 195, 198 So. 574, 4 So.2d 881, 883. The court, after quoting [211 Miss. 188] from the Brent case said: 'The appellant argues that Sections 4173......
  • Feliciana Bank v. Manuel & Sessions, L.L.C., No. 2005-CA-01296-COA.
    • United States
    • Court of Appeals of Mississippi
    • November 21, 2006
    ...reserving the timber, [it] thereby conveyed the timber, for ordinarily timber is a part of the land on which it stands." Albritton, 198 So. at 574. Since growing timber is part of the realty, a conveyance of the realty without excepting the timber will also convey that ¶ 12. The deed of tru......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT