Wells v. Dane

• Decision Date: 28 December 1905
• Parties: WELLS v. DANE et al.
• Court: Maine Supreme Court

63 A. 324

101 Me. 67

WELLS

v. DANE et al.

Supreme Judicial Court of Maine.

Dec. 28, 1905.

Exceptions from Supreme Judicial Court, Cumberland County.

Action on the case by John Wells, a stockholder in the Centrifugal Leather Company, a corporation, against Francis Dane and others as officers of said corporation, to recover damages claimed to result from alleged fraudulent action of the defendants as officers of said corporation. The writ originally contained three counts to which the defendants filed a demurrer which was sustained. The plaintiff was then allowed to amend, whereupon he filed two new counts to his declaration. To these two counts the defendants demurred, and which last demurrer was also sustained. The plaintiff then took exceptions to the rulings sustaining both the former and the latter demurrers. Overruled.

Argued before EMERY, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

John Wells, pro se. Bird & Bradley, for defendants.

POWERS, J. Exceptions to a sustaining demurrer to plaintiff's writ. The writ originally contained three counts. After a demurrer was sustained the defendant was allowed to amend by filing two counts. The defendant filed a new demurrer which was sustained, and the plaintiff then accepted to sustaining both demurrers.

Only the amended counts need be considered. By amending plaintiff waived his right to accept to the ruling sustaining the first demurrer. He could not both amend and accept; a course which would, in effect, ask the judgment of this court upon the sufficiency of pleadings which he himself had abandoned.

The amended counts charge that the defendants were directors in the Centrifugal Leather Campany, a corporation whose capital stock was 150,000 In shares of the par value of $100 each; that the legally issued shares of the corporation were 900, of which the plaintiff owned 360 and controlled 180 more; that on September 10, 1900, the corporation entered into a contract with Francis Dane one of the defendants, which contract is set out in full and related to the development of the corporate plant and business; that the defendants, wickedly designing to injure and harass the plaintiff, and intending and contriving to cheat and defraud him by depriving him of his right to control the corporation, conspired to mutilate and falsify, and did mutilate and falsify the records of the corporation by inserting in the original stockholders' and directors' records the following false and forged vote of the directors purporting to have been passed at a meeting of the directors held on April 4, 1899, viz:

"Voted, That in consideration of the services, moneys, rents, machinery, skill, and knowledge of the leather business contracted for with the said Francis Dane, as set out in the memorandum of agreement between him and the Centrifugal Leather Company, entered into on April 4, 1899, there be issued to said Francis Dane, $60,000 of the capital stock of this company."

It is further alleged that the defendants cut out four pages of the corporation records, which showed that all said Dane's former contracts and agreements with the Corporation had been conceled and annulled, and that he did not own said 600 shares of treasury stock, and inserted in those records the following false and forged vote purporting to have been passed on September 3, 1900:

"Voted, That the memorandum of agreement entered into between Francis Dane of Hamilton, Mass. and the said Centrifugal Leather Company, being dated at Portland, Me., April 4, 1899, in consideration of a certain new contract this day entered into and executed by and between the said Francis Dane and said company, be canceled and annulled;" and that they altered and falsified the original cancellation of the first contract between said Dane and the corporation by substituting for the following original record of cancellation, viz., "The above contract is hereby canceled and annulled by consent of the parties thereto," a falsified record of the cancellation of said contracts, which now appears on the records of the corporation as follows:

"Portland, Maine, September 10th, 1900.

"The above contract is hereby canceled and annulled in consideration of a contract entered into this day between the Centrifugal Leather Company and Francis Dane of Hamilton, Massachusetts."

Then follows an allegation that by this mutilation and falsification of the records the true relation and legal rights of the plaintiff in and to his property rights in said corporation were wickedly and wrongfully misrepresented, that in consequence and pursuance of said corrupt and fraudulent conspiracy and agreement he was defrauded and cheated out of a large amount of property in the corporation, that in consequence of said wrongful and corrupt acts of the defendant the plaintiff was forced into litigation in an effort to maintain his legal rights in the corporation, that he was finally forced to part with his interest in said corporation at a price far below its true value to him, and was unjustly, unlawfully and...