White v. Kincaid
| Decision Date | 16 December 1908 |
| Citation | 63 S.E. 109,149 N.C. 415 |
| Parties | WHITE v. KINCAID et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rowan County; Webb, Judge.
Action by W. H. White against J. J. Kincaid and others. From an order dissolving a preliminary restraining order, plaintiff appeals. Affirmed.
The doing of a lawful act in a lawful manner affords no cause of action to one damaged thereby, though the doing of the act complained of is prompted by a motive which is reprehensible and malicious.
The plaintiff, using his complaint filed in the cause as an affidavit, alleged, among other things, that he owned $2,000 of stock in defendant company, a corporation having $19,000 of paid-up stock, owning a valuable plant, and owing not more than $2,800. Plaintiff also alleged certain wrongs committed in the control and management of the plant on the part of one of the defendants, J. J. Kincaid, the manager and owner of 140 shares of stock, and avers, further, that he and the individual codefendants had made a combination, and entered on a scheme to dissolve the corporation, for the purpose of ousting plaintiff from his office as secretary and treasurer and impairing the value of his holdings, by selling out the property at a time and in a manner that would result in a sacrifice of the same, and cause great damage to the corporation and the holders of stock therein, etc. Plaintiff alleged, further, that the corporation is solvent, and was prosperous until the last several months, when, owing to the panic, the furniture mills of the county had closed down, or were working on shorter time, and this condition of affairs had made it advisable for defendant company to suspend operation temporarily, but there was every reason to believe that, with the revival of business now probable and imminent defendant company could resume, and under proper management become, a money-making enterprise. The individual defendants answered, and admitted that the plant was now closed down and alleged that its indebtedness is much greater than plaintiff states, filing an itemized statement of accounts and claims against it; that, while the corporation is now solvent, there are no present means available for further operations. Defendants further admit that, under section 1195, Revisal 1905, the defendant's directors, acting in their best judgment, and believing it advisable and most for the benefit of the corporation that the same should be dissolved, had passed resolutions to that effect; and, having issued proper notices for the stockholders to meet and consider and pass upon this resolution, as required by the statute, the said stockholders were proceeding to act under the notice, when they were stayed by restraining process of the court issued in this cause. Defendants deny that there has been any scheme or purpose to wrong the plaintiff or deprive him of his property, or to wrong or injure the corporation, or the holders of the stock therein, either by reason of the dissolution or the disposition of the property but aver that the property is to be sold by methods best calculated to make it bring its value, and where plaintiff and all others, shall have an opportunity to bid and buy; that defendant J. J. Kincaid is the only member of the company who has any experience in this work, and he desires to withdraw and go into the business in the eastern part of the state, and, taking all the conditions and circumstances into cosideration, the directors, deeming it to the best interest of the corporation and its stockholders that it should be dissolved, have passed the resolution to that effect, as heretofore stated. Plaintiff replied, denying the amount of indebtedness claimed, averring mismanagement, etc., on the part of defendant J. J. Kincaid, as stated. On the hearing the preliminary restraining order was dissolved, and the plaintiff excepted and appealed.
T. C. Linn and Adams, Jerome & Armfield, for appellant.
L. H. Clement, Hayden Clement, and Overman & Gregory, for appellees.
Our statute on the subject (Revisal 1905, § 1195) provides for the voluntary dissolution of corporations, in effect, as follows: "That, whenever, in the judgment of the board of directors, it shall be deemed advisable and most for the benefit of a corporation that it should be dissolved, they may pass a resolution to that effect by a majority of the board, proper notice being first given as required, and when this resolution has been submitted in writing to the stockholders, and, in a meeting called for the purpose two-thirds in interest of the stockholders consent to such dissolution, and the action is filed with the Secretary of State, who shall issue a certificate to that effect, and after due publication of notice in the county, and this having been made to appear to the Secretary, the corporation shall be dissolved and its business affairs settled up and adjusted as required by law." As far as North Carolina is concerned, this statute settles the question formerly much mooted in the courts as to whether, and under what circumstances, a corporation could be dissolved by the stockholders, when no time...
To continue reading
Request your trial