Tyler v. Bruce
| Decision Date | 10 July 1925 |
| Docket Number | No. 24459.,24459. |
| Citation | 164 Minn. 167,204 N.W. 644 |
| Parties | TYLER et al. v. BRUCE et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; R. D. O'Brien, Judge.
Suit by Albert F. Tyler and another against John R. Bruce and others. Judgment for defendants, and plaintiffs appeal. Affirmed.
Byron G. Burbank, of Omaha, Neb., and Eugene M. O'Neill, of St. Paul, for appellants.
Morphy, Bradford & Cummins, of St. Paul, for respondents.
This is an action by Albert F. Tyler and the Radiological Publishing Company, Inc., against John R. Bruce, Russell B. Carman, and the Radiological Society of North America, Inc., for an injunction restraining the defendants from publishing a journal called "Radiology," from publishing any journal upon the subject of radiology, from refusing to deliver to the plaintiff company the proceedings of the Radiological Society of North America, Inc., from asserting or maintaining that the Journal of Radiology is not the authorized journal for the publication of the proceedings of the Radiological Society of North America, and for an accounting. There was judgment for the defendants adjudging that plaintiffs were not entitled to relief. They appeal from the judgment.
1. The plaintiff Dr. Albert F. Tyler is the majority stockholder of the plaintiff corporation and a member of the defendant society. The defendant Bruce publishes Radiology in St. Paul for the defendant society; and the defendant Dr. Russell D. Carman is its president. There is published in Omaha, under the name of the plaintiff corporation, the Journal of Radiology.
On October 26, 1917, the Western Roentgen Society, Inc., was incorporated under the laws of Illinois. Its object, as expressed in its articles, was:
"The object for which it is formed is the study and promotion of the science of Roentgenology."
Afterwards, in December, 1920, the name was changed, by amendment, to Radiological Society of North America, Inc., and its objects were stated to be:
In 1918 and 1919 the society published the Journal of Roentgenology. In December, 1919, the name was changed to the Journal of Radiology. Section 3, quoted above, was adopted after the change of name. Later the constitution was so amended as to make it one object of the society "to maintain a journal."
At the meeting of the society at Chicago, in December, 1920, when Dr. Tyler was president, the method of continuing the publication of the journal had serious consideration. There were financial difficulties in maintaining it; or at least in getting it established on a self-sustaining basis. The view was expressed that it was necessary to provide a fund for caring for the immediate publication of the journal until it should become self-sustaining. One Plum, who was of experience in publishing, strongly advised the formation of a corporation. It was contemplated that he would be the business manager. Later he and Dr. Tyler did not agree on the terms of employment, and his services were not engaged. He expressed the view that, if the journal could be made to pay its own way the first year, "in years to follow it will be a big money maker." Dr. Tyler was active, and favored the organization of the corporation, and it was decided to proceed with the plan advocated by Plum. It was intended that members of the society would subscribe for the stock, and some of them did. The society was not to be a stockholder. If the venture was money-making, the stockholders would have the profit; if a failure, they would lose. In January, 1921, Dr. Tyler organized, under the laws of Nebraska, with its place of business at Omaha, the plaintiff Radiological Publishing Company. The nature and purpose of the corporation, as stated in its articles of incorporation, were as follows:
"The general nature and purpose of this corporation shall be to print and publish journals, magazines, articles and papers, and, if thought best, to secure advertising and subscriptions therefor; to do a general job printing business, and all other things incidental to the business above enumerated, including buying and selling notes and mortgages, leasing, letting, subletting, buying, mortgaging, conveying and selling such real and personal estate as shall be necessary to carry on the same, and especially to publish the Journal of Radiology, including the solicitation of advertising matter and the obtaining of subscriptions for said journal."
The method of exercising its powers, as fixed by the articles, was as follows:
"The corporate powers of this corporation shall be vested in a board of directors consisting of six members who shall be elected by the stockholders at their annual meeting."
An amendment to the constitution of the defendant society, adopted at the December, 1921, meeting, provided:
The two corporations, the Illinois corporation and the Nebraska corporation, were separate entities, capable of contracting with others and with each other. The former did not create the latter. Their powers and purposes were distinct.
Things did not go well. The members of the society did not subscribe freely, and there was a lack of working capital. The annual dues of members were $10 each, of which $5 was for a subscription to the journal. They were not enough, with the money coming from the stock sold, to meet the need. Factional differences arose. After 1922 the society did not pay the subscriptions to the publishing company.
In December, 1922, at a directors' meeting of the publishing company at Omaha, a resolution was passed to the effect that the publishing company should no longer publish the journal of the society. The court finds that in passing the resolution the directors acted in good faith, after investigation of the financial condition of the company. On the same day the stockholders of the publishing company, at a meeting, whether regularly or irregularly called, we do not inquire, made Dr. Tyler general manager, and the publication of the Journal of Radiology was continued in the name of the company.
The Radiological Society, at its meeting in San Francisco in June, 1923, changed the name of its journal to Radiology. The defendant Bruce was chosen business manager and the publication of Radiology at St. Paul commenced, and has continued since.
The trial court found:
This finding is sustained. The journal represented the labors of the Radiological Society. The understanding at the 1920 meeting clearly was that it was to be its property, and that the corporation to be organized was to publish it as the official organ of the society. The journal was the journal of the society, its official medium of communication among its members, and an essential instrumentality in the promotion of the objects of its incorporation. The publishing company was the agency for putting it in form, attending to its business management, and promoting its circulation. It was a business corporation for pecuniary profit. It hoped to gain through the prosperity of the journal; and its articles authorized a number of other money-making activities. The new journal,...
To continue reading
Request your trial