Taylor v. Buffalo Collieries Co

• Decision Date: 29 April 1913
• Citation: 79 S.E. 27,72 W. Va. 353
• Parties: TAYLOR. v. BUFFALO COLLIERIES CO.
• Court: West Virginia Supreme Court

79 S.E. 27

(72 W. Va. 353)

TAYLOR.

v.BUFFALO COLLIERIES CO.

Supreme Court of Appeals of West Virginia.

April 29, 1913.

^†

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Appeal from Circuit Court, Mingo County.

Action by R. N. Taylor against the Buffalo Collieries Company. From a judgment for defendant, plaintiff appeals. Modified and affirmed.

G. R. C. Wiles, of Williamson, and Campbell, Brown & Davis, of Huntington, for appellant.

Stokes & Bronson, of Williamson, for appellee.

LYNCH, J. The bill in this cause was dismissed by the circuit court, upon defendant's demurrer thereto. Plaintiff appeals.

His right to relief is based upon a contract between him and Leftwich (who is not a party and apparently not interested) and the Buffalo Collieries Company, dated August 3, 1903. It is unnecessary to quote more than two clauses of the contract, the first and the thirteenth, because they sufficiently express the true intent, meaning, and purpose thereof, so far as necessary to the proper determination of plaintiff's right to the relief sought:

"First. That in consideration of the terms, conditions, and stipulations hereinafter set out, to be kept and performed by the parties hereto respectively, the parties of the first part do hereby let and lease to the party of the second part, with the consent of the Buffalo Land & Coal Company, which said consent is hereto attached, as part of this lease, the exclusive right and privilege of mining, shipping, and selling all the coal on, under, and from the premises hereinafter described (800 acres), together with the privilege of manufacturing coke and all other by-products of coal on and from said premises, for a term of 50 years, or until all the merchantable coal on, in, and under said land shall have been mined and removed therefrom."

"Thirteenth. It is further agreed, stipulated, and understood by and between the parties hereto that the lessors, Everett Leftwich and R. N. Taylor, shall have and do hereby retain and reserve unto themselves, their heirs or assigns, a one-tenth interest in and to all the rights, privileges, and property interest in or pertaining to the property or lease herein demised, contracted, and described, which interest shall be held in the nature, shape, and condition of paid-up and nonas-sessable stock in the lessee's company, which stock shall be evidenced by certificate properly issued, executed, and signed by the proper officers of said company, one-half of the said 10 per cent. of the stock of said company to be issued to each of the lessors above named or his personal and legal representatives separately and in such denomination as he may direct; but in case no such direction be given then the proper officers of said company shall issue to each of the lessors above named 5 per cent. of each and every issue of stock which may now or hereafter be made, and evidence the same by one certificate for each lessor or his representatives, as above, covering his said 5 per cent. of said stock issued, whether preferred, common, or otherwise, and whenever or under whatever circumstances said company, its successors or assigns, may issue any stock. And whenever said company, its successors or assigns, may issue any stock of whatever kind, or for whatever purpose, 10 per cent. of such stock shall be issued to said lessors as above described, and the said 10 per cent. shall be paid-up and nonassessable stock, without cost to or charge upon the said lessors above named or their representatives; and the holders of the nonassessable stock herein provided for shall be entitled to their pro rata dividends as are other stockholders."

By its articles of incorporation and charter, defendant was authorized to issue, and subsequent to its organization did issue, 1,-000 shares of its capital stock, of the par value of $50 per share, and distributed the same to its stockholders in the proper proportions, including the plaintiff, to whom it issued 5 per cent. thereof, or 50 shares. Of this plaintiff does not complain. Some time thereafter he sold and assigned, in the usual manner, the certificate thereof so delivered to him.

The gravamen of the complaint alleged by the bill is that from time to time thereafter, and without plaintiff's knowledge until within a few months before the institution of the suit, defendant obtained from the state, by the regular method, authority to increase its capital stock to a maximum of $300,000, and that, pursuant thereto, it did increase the same from $50,000 to or near the authorized maximum limit, 5 per cent. of which, though demanded by him, it has failed and refused to issue to him, which he claims under the provisions of the thirteenth clause of the contract. As incident to the rights thus asserted, plaintiff, by the bill, further complains of defendant's denial of the privileges legally due him as one of its stockholders. He admits that defendant has successfully conducted its corporate business, has...