Loewenberg v. De Voigne

• Decision Date: 30 November 1909
• Citation: 123 S.W. 99
• Parties: LOEWENBERG v. DE VOIGNE et al.
• Court: Missouri Court of Appeals

123 S.W. 99

LOEWENBERG v. DE VOIGNE et al.

St. Louis Court of Appeals. Missouri.

November 30, 1909.

Rehearing Denied December 14, 1909.

1. ACTION (§ 1)—GROUNDS — MALICIOUS EXERCISE OF A RIGHT.

An action for damages will not lie against defendant for preventing the issuance of a certificate of incorporation by filing objections with the Secretary of State, although plaintiff alleges that the objections were frivolous and were maliciously made, as it will be presumed that the objections, which were sufficient to prevent the Secretary of State from issuing the certificate, were not frivolous, and an action will not lie for the malicious exercise of a right.

2. CORPORATIONS (§ 582)—CONSOLIDATION— ACTION—PETITION.

Plaintiff alleged in his petition that a contract had been formed by a number of persons named, who were stockholders in two corporations, to form a new corporation in which those holding a majority in interest in the old corporations were to be stockholders, and that an attempt was made to organize a new corporation, and that defendant, who was one of the parties to the contract, prevented the issuance of a certificate of incorporation by maliciously filing with the Secretary of State frivolous objections to the issuance of the certificate. Held, that the omission to allege in the petition that the parties attempting to form a new corporation constituted a majority in interest of the subscribing parties to the agreement was fatal.

3. SPECIFIC PERFORMANCE (§ 28)—CONTRACTS ENFORCEABLE—CERTAINTY.

A contract to form a corporation, which does not specify the amount of capital or the number of shares into which it should be divided, nor the amount proposed to be paid in on incorporation or who shall constitute the first board of directors, and provides for no division of the shares among the incorporators, is too uncertain to be specifically enforced.

4. PARTIES (§ 75)—DEFECT OF PARTIES—MANNER OF OBJECTING.

A defect of parties which is apparent in a petition may be challenged by demurrer.

5. PARTIES (§ 20)—PLAINTIFFS—JOINDER.

Persons holding the stock of two corporations signed a contract to form a new corporation by a majority in interest of the stockholders of the old corporations, and an attempt was made to organize the new corporation, but the issuance of a certificate of incorporation was prevented by defendant filing with the Secretary of State objections to its issuance. Plaintiff, who was one of the subscribers to the agreement, brought an action for damages against defendant, and alleged the transfer to him of the shares of certain of the subscribers to the agreement and also their right of action under the contract. Held, that persons so transferring

their shares were necessary parties to the action.

6. ASSIGNMENTS (§ 23)—RIGHTS OF ACTION.

A right of action for damages for preventing the issuance of a certificate of incorporation in accordance with a contract entered into by defendant and others to form a corporation is not assignable.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by Joseph Loewenberg against Arnold De Voigne and others. A demurrer was sustained to the petition, and, plaintiff declining to plead further, judgment was ordered for defendants, and plaintiff appeals. Affirmed.

Plaintiff commenced this suit, and, after filing several petitions, stood on this as his cause of action; it being his second amended petition: "That heretofore, to wit, on the 1st day of September, 1904, he, in conjunction with R. H. Kobusch, Charles H. Thuner, Wm. A. Kinnerk, F. W. Hafkemeyer, Charles Rost, F. C. Helmkamp, F. A. Trebbe, defendants Arnold L. De Voigne and one Miss Susie Simpson, who at the time composed all the stockholders of the Charles Rost Furniture & Premium Company, a corporation, and the Union Premium & Mercantile Company, a corporation, entered into a certain agreement in writing (a copy of which is herewith filed marked `Exhibit A'), wherein and whereby it was provided that a new corporation should be organized by a majority in interest of the subscribers to said agreement to be styled Rost-Union Premium Company, or other suitable name, and that said new company should take over all the assets and assume all the liabilities of the two corporations above named, that is, the Charles Rost Furniture & Premium Company and the Union Premium & Mercantile Company. And the said Charles Rost and Arnold L. De Voigne further agreed in and by said contract that upon the organization of said new corporation provided for and contemplated by said contract that they, nor either of them, would directly or indirectly engage in a like business as that carried on by said Charles Rost Furniture & Premium Company and the said Union Premium & Mercantile Company for a period of five years after the organization of said company within a radius of 50 miles of the territorial limits of the city of St. Louis, Mo. Plaintiff further states that, upon the execution of said contract of consolidation, all the parties thereto, with the exception of said defendant De Voigne, proceeded to carry out the same in good faith, and articles of association of said proposed company under the name Rost-Union Premium & Mercantile Company were duly executed, filed of record, and presented to the Secretary of State at Jefferson City, as provided by law for the formation of corporations, but that a certificate of incorporation was not issued by the Secretary of State by reason of objections filed against said proposed incorporation by said defendant De Voigne, through attorneys employed by him for that purpose. Plaintiff states that said objections related solely and only to the name of said proposed corporation and were grounded upon the fact that there was an existing going corporation by the name of Union Premium & Mercantile Company with which the name of the proposed corporation would conflict; that said name, to wit, Rost-Union Premium & Mercantile Company, by reason of its association with the Charles Rost Furniture & Mercantile Company, was well known to the trade, and was of great and incalculable value, and would have been a valuable and continuing asset in the business proposed to be carried on by said new corporation. Plaintiff further states that said objections so made were frivolous and without merit, and were known to be so when made by said defendant De Voigne through his said attorneys, and were maliciously made for the purpose of preventing the incorporation of said company as contemplated by said contract of consolidation, and that, by...