Ross v. American Banana Co.
| Decision Date | 08 May 1907 |
| Citation | 43 So. 817,150 Ala. 268 |
| Parties | ROSS v. AMERICAN BANANA CO. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.
Action by Jack F. Ross against the American Banana Company. From a judgment sustaining a demurrer to the bill, complainant appeals. Affirmed.
Inge & Ambrecht and N. R. Clarke, for appellant.
Gregory L. & H. T. Smith, for appellee.
The appeal in this case is prosecuted from the decree of the chancellor sustaining a demurrer to the bill.
Where a private business corporation has failed of the purposes and objects of its creation, a single stockholder may maintain a bill in equity for the dissolution of such corporation and distribution of its assets among those equitably entitled thereto. Such a bill may be maintained, whether the corporation be solvent or insolvent; but under such a bill the remaining stockholders are necessary parties. McKleroy v. Gadsden Improvement Co., 126 Ala. 190 28 So. 660. and authorities there cited. This principle as to necessary parties is not departed from in the later case of Noble v. Gadsden Land & Improvement Co., 133 Ala 250, 31 So. 856. The latter case only makes application of rule 19 of chancery practice where the parties are numerous.
While the bill avers as a conclusion that the defendant corporation is insolvent, the facts stated in the bill contradict, rather than support, this averment. It is stated in paragraph 8 of the bill that there are subscriptions to the capital stock, payable in money, amounting to more than $300,000, and the bill does not negative the solvency of these subscriptions to the capital stock, nor that the same is not ample to pay the debts of the corporation. The bill, therefore, failing to sufficiently aver facts showing the insolvency of the corporation, or that it has suspended its ordinary business for the lack of funds to carry on the same, cannot be maintained under the act approved October 2, 1903. Acts 1903, p. 338, § 50.
The bill contains many charges of wrongs against the corporation by its managing officers, which it seeks to redress. Considering this theory of the bill, it is wanting in necessary averments of a failure and refusal on the part of its managing body, after proper demand made for that purpose to redress the wrongs complained of, or of averment of sufficient reasons for a failure to make such demand. Crow v. Florence I. & C. Co., 143...
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...business cannot be had, Phinizy, or the corporation has "failed of the purposes and objects of its creation," Ross v. American Banana Co., 150 Ala. 268, 43 So. 817, or has suspended its business or is a derelict, Alabama Central Ry. Co. v. Stokes, 157 Ala. 202, 47 So. 336, a dissolution may......
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Burg v. Smith, 6 Div. 725.
...on Corporations (3d Ed.) 528, § 4628. Insolvency is not a necessary averment when the purposes of a corporation have failed. Ross v. American Banana Co., supra; Phinizy v. Anniston City Land Co., 195 Ala. 656, So. 469; Henry v. Ide, 209 Ala. 367, 96 So. 698. The failure of corporate purpose......
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...Brent v. B. E. Brister Sawmill Co., 103 Miss. 876, 60 So. 1018, 43 L. R. A. (N. S.) 720, Ann. Cas. 1915B, 576; Ross v. American Banana Co., 150 Ala. 268, 43 So. 817; Green v. National Advertising & Amusement Co., 137 Minn. 65, 162 N.W. 1056, L. R. A. 1917E, 784; Thwing v. McDonald, 134 Minn......
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