Tanana Trading Co. v. North American Trading & Transportation Co.

Decision Date08 February 1915
Docket Number2172.
Citation220 F. 783
PartiesTANANA TRADING CO. v. NORTH AMERICAN TRADING & TRANSPORTATION CO.
CourtU.S. Court of Appeals — Ninth Circuit

On Cross-Appeal, March 18, 1915.

At the close of the trial in this action the court below directed a verdict in favor of the defendant in error. That ruling is the only error which is assigned. The parties to the action will be named herein plaintiff and defendant, as they were in the court below. The plaintiff was engaged in carrying on a trading business on the Yukon and Tanana rivers. In connection therewith it owned the steamer Ella, two barges the Independence and the Dakota, and a nine-sixteenths interest in the steamer J. P. Light. From the owner of the remaining interest therein it held a lease. The plaintiff had seven directors, Bain, Struthers, Dwyer, Bishoprick, Cameron Livingston, and Blair, and the directors owned all of the stock which had been issued. Bain and Struthers owned the majority thereof. Bain was the president, and Struthers was the vice president and treasurer. The plaintiff had been unsuccessful in its business, and desired to dispose of its vessels and barges. In July, 1906, Bain, who was at Seattle entered into an agreement with Isom, the general manager of the defendant, for the sale of the boats and barges. The plaintiff was to receive therefor $60,000, and was to have from the defendant a special freight rate for the remainder of that season at $60 per ton, the usual rate being $70. The directors had previously agreed to sell, and had authorized Bain to sell the boats and barges upon the payment of $57,000 and an agreement for a freight rate of $30 per ton. The sale was made and the vessels were transferred to the defendant by Struthers as vice president and Dwyer as secretary. Subsequently all the directors except Bain and Struthers disaffirmed the contract, on the ground that it had been made in violation of the terms upon which the property was to have been sold, and that Bain and Struthers had concealed from them knowledge of the provision for the payment of $60 per ton freight rate. In the latter part of October, 1906, 325 additional shares of capital stock were issued to Livingston although he paid nothing therefor. The minority, claiming to have attained thereby a majority of the stock, removed Bain and Struthers from office and directed that a suit be brought against the defendant and Bain and Struthers, charging the three defendants with fraudulent conspiracy in the sale. That suit was brought on December 1, 1906. At the same time Bain and Struthers brought a suit against the other directors to declare void and restrain the issuance of the additional stock to Livingston. About January 1st all the directors met and entered into mutual agreements, the effect of which was that the corporation be wound up, that the suit of Bain and Struthers against the other members be dismissed, and that Bain and Livingston be left in full charge of the business of the corporation for the purpose of winding it up. A resolution was passed releasing the defendants Bain and Struthers from any and all causes of action and damages arising out of the matters and things set forth in the complaint in the action in which they were defendants. Thereafter in its amended complaint the plaintiff omitted Bain and Struthers as parties defendant. The amended complaint, on which the cause was tried, alleges that the defendants conspired together to cheat, deceive, and defraud the plaintiff, and made the sale of the boats in violation of the authority which had been given to Bain and Struthers, and that they fraudulently and wrongfully represented to the plaintiff that the sale had been made according to the terms of its resolutions. The plaintiff prayed for a judgment against the defendant for the sum of $169,000 as damages, and for the return of the boats and barges, or for the value thereof in the sum of $65,000, in case possession could not be had.

Louis K. Pratt and A. R. Heilig, both of Fairbanks, Alaska, and John F. Cassell, of San Francisco, Cal., for plaintiff in error.

Frederick Bausman, R. P. Oldham, and R. C. Goodale, all of Seattle, Wash., and Chas. J. Heggerty, of San Francisco, Cal., and McGowan & Clark, of Fairbanks, Alaska, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge (after stating the facts as above).

The court below sustained the defendant's motion for an instructed verdict on two grounds: First, that the plaintiff was estopped from bringing the action by its acts and conduct after it had discovered the nature of the transactions between Bain and Isom; and, second, that by releasing Bain and Struthers the plaintiff released the defendant. We do not deem it necessary to discuss the first ground on which the motion was granted, as, in our opinion, the second ground was sufficient to support the ruling of the court. There was a consideration for the release of Bain and Struthers. They had brought a suit against the corporation and the other directors to declare invalid and to enjoin the issuance of the 325 shares of stock to Livingston. In that suit they had obtained an injunction. What it may have been worth in money to the corporation or to the other stockholders to obtain a dismissal of that suit in view of its interference with corporate action and its embarrassment to the other directors and the officers who ostensibly controlled the action of the corporation, does not appear; but we may assume that the...

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8 cases
  • Natrona Power Company v. Clark
    • United States
    • Wyoming Supreme Court
    • May 6, 1924
    ... ... 850; Boyles v. Knight, 26 So. 939; Trading ... Co. v. Co. 220 F. 783; an acknowledgment of ... ...
  • McKenna v. Austin
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 11, 1943
    ...either express or implied, to look to the other wrongdoers for further damages or compensation.' In Tanana Trading Co. v. North American Trading & Trans. Co., 9 Cir., 220 F. 783, 786, it is said: `In cases of joint torts, the injured person may sue one, or any number less than all, of the j......
  • American Ry. Express Co. v. Stone, 2224.
    • United States
    • U.S. Court of Appeals — First Circuit
    • June 28, 1928
    ...and unqualified release of the police officers and released all who had co-operated with them. Tanana Trading Co. v. North American Trading & Transportation Co. (C. C. A.) 220 F. 783, 786; Kirkland v. Ensign-Bickford Co. (D. C.) 267 F. 472; Spiess v. Sommarstrom Ship Building Co. (C. C. A.)......
  • THE ADOUR
    • United States
    • U.S. District Court — District of Maryland
    • September 22, 1927
    ... ... , the ship was not in a convenient American port till July 20, 1925, when she arrived in ... Div. 92, 66 N. Y. S. 1066. See, also, Tanana Transp. Co. v. North American Co. (C. C. A.) 220 ... ...
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