Jefferis v. William D. Mullen Company

• Decision Date: 24 March 1926
• Citation: 15 Del.Ch. 144,132 A. 687
• Court: Court of Chancery of Delaware
• Parties: THOMAS E. JEFFERIS, v. WILLIAM D. MULLEN COMPANY, a corporation of the State of Delaware

132 A. 687

15 Del.Ch. 144

THOMAS E. JEFFERIS, v. WILLIAM D. MULLEN COMPANY, a corporation of the State of Delaware

Court of Chancery of Delaware, New Castle

March 24, 1926

BILL FOR ACCOUNTING. Bill by the complainant as a stockholder of the defendant by which he seeks a decree for the sum found due to him on an accounting and for an inspection of books papers, etc., of the defendant.

The original bill was demurred to and pending decision on the demurrer the complainant asked leave to amend by filing a substituted bill. The defendant interposed an objection to granting the requested leave.

The following opinion was filed adversely disposing of the motion for leave to amend and then of the demurrer.

Application for leave to amend denied and demurrer sustained.

John R Nicholson and Robert G. Harman, for complainant.

Charles F. Curley, of the firm of Saulsbury, Curley & Davis and C Stewart Lynch, for defendant.

OPINION

THE CHANCELLOR

The motion for leave to amend by filing a substituted bill must be denied. The principle upon which this disposition of the motion rests is that it is not permitted to present an entirely different case by amendment from that which was presented by the bill as originally drawn. Merchants' Union Trust Co. v. New Philadelphia Graphite Co., 10 Del.Ch. 155, 87 A. 1022. That the new bill presents an entirely new case seems clear. This will appear from a reading of the two bills.

The original bill presents the case of a declaration of dividends by the corporation and a refusal or omission on its part to pay the complainant the dividends belonging to him as a holder of fifty shares of stock, and it seeks to recover those dividends. The complainant argues that such was not the nature of the original bill. He contends that it can be inferred from its allegations that dividends had not been declared and that the refusal to declare dividends was fraudulent--although he admits that the original bill contained no full and explicit allegation to that effect. This being the inference which it is said can be drawn from the original bill, it is therefore urged that it ought not to be regarded as a bill seeking to recover declared dividends. I do not think the original bill admits of the interpretation now claimed for it. It recites a charge made in a bill filed in another cause between these same parties that the defendant had declared and paid dividends since 1921, a denial in the defendant's answer in that cause that other dividends had been declared or paid since that year, and then proceeds to show as evidence of such dividends the payment to one Ethel H. Lloyd, the owner of nine shares of stock, the sum of $ 108, "being a dividend of six per centum on the said nine shares of stock," which was sought to be concealed by being called interest. The bill says that without an accounting and examination of the books the complainant is unable to ascertain "what other dividends have been declared and what other dividends are due to your orator," and that the complainant has demanded payment to him of "the dividend of six per centum which was declared as aforesaid" (referring to the dividends paid to the stockholder, Ethel H. Lloyd), but the corporation "unlawfully and illegally retains the same." The main prayer for relief is that an account be taken of what is due on the said fifty shares of stock and that the defendant be...