Imágenes de páginas

The transaction of which complaint is here | stock did not pass to the treasury of the New made may be briefly characterized as an at- Jersey corporation; it was ordered issued tempt of the New Jersey corporation to to the several stockholders of the New Jerabandon its New Jersey charter and to oper- sey corporation. The contemplation of the ate in the future under a Delaware charter transaction as in general effect a delivery of in order to escape the burden of the New the stock of the Delaware corporation to the Jersey annual franchise tax. The method New Jersey corporation and a distribution adopted was simple but unscientific. A Dela-l of that stock to the several stockholders of ware corporation was formed of the some the New Jersey corporation contributes nothname and capitalization as the New Jersey ing to its vitality. Our statutes touching corporation and the directors of the New dividends to stockholders from profits and Jersey corporation by resolution then au- distribution of capital to stockholders after thorized a transfer of the entire assets of

payment of debts clearly render the entire the New Jersey corporation to the Delaware transaction unlawful. In fact no consideracorporation in consideration of the Delaware

tion passed, or was intended to pass, to the corporation assuming the debts of the New

New Jersey corporation; that corporation Jersey corporation and issuing its capital

was intended to be abandoned and set adrift stock to the several stockholders of the New

without assets or stockholders, and its credJersey corporation upon such stockholders

itors were left to look to the obligation of the surrendering their New Jersey stock. A

Delaware corporation to pay the debts of the stockholders' meeting then approved the plan

New Jersey corporation under the contract and the transfer of assets was made and all

of assumption. stockholders of the New Jersey corporation

[2] It is apparent, however, that no relief except two surrendered their New Jersey stock and accepted an equal number of

can be administered in this suit through a

decree setting aside the transfer of assets shares in the Delaware corporation. The former board of directors of the New Jersey

or declaring the transaction void or holding

the directors responsible for misconduct of corporation were made directors of the Dela. ware corporation, and that corporation has

official duties, for the legal title to these assince 'operated without change or disturbance

sets is in the Delaware corporation, which of the business or its methods.

corporation is not subject to the jurisdiction Complainant, a large stockholder and also

of this court in this suit, and the several dia large creditor of the New Jersey corpora

| rectors are nonresidents and have not aption, has at no time consented to these pro- pea

peared in this suit, and few, if any, of the ceedings. His bill seeks a decree declaring assets in ques

assets in question are within this jurisdiction. proceedings unlawful and void and setting

It seems clear, therefore, that the only pracaside the transfer of the assets, and, in the

ticable relief which can be afforded is the apevent of this being found impracticable or

pointment of a receiver of the New Jersey impossible in this suit, praying for the ap corporation, which is now in an insolvent pointment of a receiver to conserve the assets

condition, to the end that the receiver may and rights of the New Jersey corporation pursue such remedies as are open to him to and its creditors.

| restore to the New Jersey corporation for the The New Jersey corporation and the Dela- benefit of its creditors and stockholders the ware corporation and all the directors of the property and property rights which have been Delaware corporation are made defendants. / unlawfully withdrawn from it. The New Jersey corporation has answered ; [3, 4] It is urged that complainant should all the other defendants, except one director, be denied relief by reason of laches. Comare nonresidents, and have refused to sub-plainant had notice of the stockholders' meetmit themselves to this jurisdiction.

ing at which the action of the directors au[1] It is obvious that no legal justification thorizing the transfer of assets was approvcan be found to support the proceedings ed, and failed to attend that meeting and which have been taken. It has been urged thereafter learned of the action which had in behalf of defendant that the transfer of been taken, and for a considerable time assets is authorized by the following provi- failed to protest or make known his dissent. sion of the articles of incorporation of the There can be no doubt that in some circumNew Jersey corporation:

stances laches can be attributed to a stock“With the consent in writing and pursuant to holder, and remedies to which he would be the vote of the holders of a majority of the stock

entitled but for his laches denied. A stockissued and outstanding, the directors shall have power and authority to sell, assign, transfer or

holder's bill in behalf of his corporation, to otherwise dispose of the whole property of this set aside a contract which has been made by corporation."

a board of directors with its members, must But this provision cannot be understood as be promptly filed or it cannot be maintained. authorizing a transfer of the assets without But in the present case there is brought bean adequate consideration moving to the fore this court an insolvent corporation New Jersey corporation. The capital stock which has been unlawfully deprived of the of the Delaware corporation was the primary legal title of its assets, and a stockholder and consideration of the transfer or sale of the creditor of that corporation asks for the ap


sets. Without here giving consideration to Fort & Fort, of Newark, for prosecutor. the question whether laches may be attribut- Durand, Ivins & Carton, of Asbury Park, for ed to a stockholder which should deny to him defendants. a right of this nature, it seems entirely clear that such laches cannot be attributed to him

m KALISCH, J. The prosecutor attacks the as a creditor. This New Jersey corporation

validity of the action of the court of comowed complainant a large sum of money at

mon pleas of Monmouth county in granting the time this unlawful transfer of assets to Charles Simonson, Jr., a license to keep was made. The assumption of the debt by an inn and tavern in the borough of Spring the Delaware corporation is not payment, and Lake, which had a population of 853, by the patient waiting of a creditor of a corporation census of 1910, on the ground that the grantfor money due him is not laches which deing of such license was in violation of the act nies to the creditor the right to seek the ap

of 1913 (P. L. 1913, p. 574), in that the statupointment of a receiver to protect his rights tory number of licenses based upon a ratio as a creditor.

population of 500 to one licensed place as pre[5] It also appears that since the transfer scribed by the act had been exhausted, there of assets the usual Governor's proclamation being, at the time of the granting of has been made against the charter rights of license, three licenses in force and effect in defendant corporation for nonpayment of the borough which had been granted to the taxes. This proclamation in no way inter- Hotel New Monmouth, the Hotel Essex and feres with the appointment of a receiver to Sussex, and the Breakers, each of which collect the assets and wind up the affairs of contalned upwards of 50 spare rooms and the insolvent corporation.

beds. I will advise a decree for the appointment Counsel for the prosecutor contend that, of a receiver.

though the licensing of hotels containing upwards of 50 spare rooms and beds is by ex

press words in the act not controlled by the (89 N. J. Law, 144)

ratio of population, nevertheless on the appliFORT 1. COURT OF COMMON PLEAS OF

cation for a license for an inn and tavern conMONMOUTH COUNTY et al.

taining less than 50 spare rooms and beds, (Supreme Court of New Jersey. April 27, such licenses must be taken into consideration 1916.)

and counted on the basis of population. This INTOXICATING LIQUORS 4642-LICENSES

contention is asserted to be founded upon NUMBER_STATUTE-ADDITIONAL LICENSE a provision in the act on page 576, which LICENSED PREMISES.

reads: Under Act April 8, 1913 (P. L. p. 576), pro- "Whenever the ratio between the population of viding that whenever the ratio between the popu: 1 any city, town, township, borough or village, lation of any borough and the number of licensed and the number of licensed premises situate erein for the sale

| therein for such sale of said liquors shall exceed exceed the ratio of 500 to one, additional li

the ratio of five hundred to one, additional licenses for the sale of such liquor may be issued

censes for sale of such liquors therein * * * at the discretion of the licensing authority, un

may be issued, at the discretion of the licensing less the licensed premises are those in which the business of selling liquor was lawfully carried

authority, but only in the manner following.' on within a year preceding the passage of the The statute then prescribes a method of act, or a hotel having at least 50 spare rooms procedure whereby an applicant for a liand beds or picnic or recreation grounds, or a

cense to keep an inn and tavern of less than building entirely occupied by a regularly organized club or association, the words "addi

50 spare rooms and beds may obtain a litional licenses" and "licensed premises" do not cense when the ratio of existing licenses to include licensed hotels containing upwards of population is less than one to 500. This 50 spare rooms and beds, so that, where popula-1 tion of a borough was 853. and there were then procedure was fully discussed and considered licensed three hotels, each containing upwards by this court in an opinion by Parker, J., of 50 spare rooms and beds, but no inn or tavern in Tilton v. Court of Common Pleas of Ocean containing less that 50 spare rooms and beds,

Co., 87 N. J. Law, 47, 92 Atl. 870. The li. an inn or tavern containing less than 50 spare rooms and beds was entitled to a license.

censee in the present case did not resort to (Ed. Note. For other cases, see Intoxicating

this procedure, and defends the legality of Liquors, Dec. Dig. En 1642.)

the issuance of the license to him upon two

grounds: (1) That the words "additional liCerti'orari to Court of Common Pleas, Mon

censes" and "licensed premises" in the act mouth County.

quoted do not include within their meaning Certiorari by John Franklin Fort, prose licensed hotels containing upwards of 50 cutor, to review the action of the Court of spare rooms and beds; (2) that if licensed Common Pleas of Monmouth County in hotels upwards of 50 rooms are within the granting Charles Simonson, Jr., a license to meaning of the act, then under another keep an inn and tavern in the borough of provision of the act on page 575, which Spring Lake. Writ dismissed, and proceed- | provides that in any city bordering uping affirmed.

on the Atlantic Ocean the population shall Argued November term, 1915, before be taken to include the transient popuPARKER, MINTURN, and KALISCH, JJ. llation, and such population shall be com

places situate t

puted as of the 1st day of August in any , number of rooms, or to picnic or recreation year, Spring Lake, which borders on the grounds of certain dimensions, or to regularAtlantic Ocean, and which has a transiently organized clubs occupying entire buildpopulation of 4,000, therefore is entitled, ings. It may very well be that in making obviously, to more than three licenses, on these places exempt from the operation of the basis of one license for every 500 of pop- the provision in the act relating to the pop ulation.

ulation basis the Legislature had in view the The facts in this case are undisputed. It fact that, at least as to summer hotels and is stipulated between counsel that Spring clubs, the use of the license privilege would Lake is a borough bordering on the Atlantic be of a temporary character. That it was Ocean, having at the census of 1910 a pop- the intention of the Legislature to put a ulation of 853 inhabitants and a transient check upon the increase in the number of population of 4,000 August 1, 1914; that the inns and taverns of less than 50 spare rooms prosecutor and objector to the granting of and beds and on saloons in cities is manthe license is a resident real estate owner ifest. The number of such latter places is and taxpayer of Spring Lake; that three regulated by the ratio of population, as stat. licenses to keep inns and taverns, being the ed, to the number of licenses granted. The three hotels mentioned, each of which con- licensed premises or places, therefore, which tains upwards of 50 spare rooms and beds, the Legislature intended to limit were not were granted by the court of common pleas 50-room hotels, picnic grounds, and clubs of of Monmouth county; that the license ap the character above described, but inns and plied for and granted in the present case taverns of less than 50 spare rooms and beds, was for a new place, and not a hotel having and saloons. This being so, it becomes clear at least 50 sleeping rooms, nor a picnic that the terms "additional licenses" and "the ground or recreation place comprising at dumber of licensed premises" cannot, in the least one acre, nor was it a building entirely very nature of the provisions of the act, reoccupied by a regularly organized club or fer to hotels having 50 spare rooms and association; that though the three hotel li- beds, picnic and recreation grounds and clubs censes were each granted for one year, it was of the character mentioned, but the language with the knowledge that the hotels would used obviously refers to inns and taverns of be open only during the summer months, and less than 50 spare rooms and beds, or sa. that they have in fact only operated during | loons which were lawfully carried on at the summer months, and that there are no li- some time within a year immediately precensed hotels in Spring Lake where the peo- ceding the passage of the act of 1913, and ple are accommodated during the entire year. provided such business was not abandoned

It is obvious from a plain reading of the at the place licensed during that year. Such act that in so far as Inns and taverns are places meeting these conditions were enticoncerned, or places where liquors are sold tled to be licensed irrespective of the ratio in quantities less than one quart, it was of population to the licenses granted. In orthe intention of the Legislature to regulate der, however, to put a check upon the inand fix the number of such places by a ratio crease of the number of inns and taverns of population to the number of licenses having less than 50 spare rooms and beds granted to places coming within that descrip- and saloons, it was the clear legislative detion. For the act provides that no license to sign that licenses granted to inns and taverns keep an inn or tavern, or to sell spirituous, or saloons which met with the above statuvinous, malt, or brewed liquors in quantities tory requirements were to be counted on the less than one quart, in any city, town, town. basis of ratio of population, as fixed by the ship, borough, or village, shall be granted by statute, whenever an application was made any court, etc., unless or until the ratio of for a license for a new place. It is not prepopulation therein to the number of licenses tended in the present case that there was issued shall be greater than 500 to one, and any other license granted by the court than then only pursuant to the act now being con- those granted to the three hotels mentioned, sidered. The act then excepts from the op- when the licensee applied for and obtained eration of this provision: (1) Premises in his license to keep an inn and tavern having which the business of selling liquors was less than 50 spare rooms and beds, and, that. lawfully carried on at some time within a therefore, the granting of such license was year preceding the passage of the act of not in violation of the statute. 1913, provided that such business was not Counsel for the prosecutor cite Gundrum abandoned at any time during the year; (2) | v. South Amboy, 86 N. J. Law, 450, 92 Atl. hotels having at least 50 spare rooms and 271, to support their contention that all li. beds for the accommodation of boarders, tran-censes count on the number limited, to one sients and travelers; (3) picnic or recreation in 500, but an examination of that case grounds comprising at least one acre; (4) a shows that the precise question raised here building entirely occupied by a regularly or- was not there considered. This appears ganized club or association.

from what Mr. Justice Trenchard, who deIt is to be observed that the act places livered the opinion of this court, says, on no limitation on the number of licenses that page 452 of 86 N. J. Law, on page 272 of 92 “Now, the depositions show that, when the li- , for plaintiff for $1,620, plaintiff appeals. Atcense in question was granted, the city of South firmed. Amboy had, exclusive of the one in question, 30 places licensed for the sale of spirituous,

Argued before BROWN, C. J., and MESvinous, malt, or brewed liquors in quantities less TREZAT, POTTER, STEWART, FRAZER, than one quart. From the depositions it also and WALLING, JJ. appears that the population of the city then was 7,007. * * Since, therefore, the ratio of Latimer P. Smith, of Philadelphia, for appopulation to the number of licensed places was pellant. John Arthur Brown and Henry P. not greater than 500 to one, the license was pro- Brown both of Philadelphia for appellee. bibited by the statute unless it is within some

Brown, both of Philadelphia, for appellee. one of the provisos or exceptions contained therein."

POTTER, J. [1] From the evidence in this The views expressed by the learned Justice case it appears that defendant agreed to pay are not in conflict with the views expressed to plaintiff a commission upon all subscriphere, but rather in harmony with the gen- tions which plaintiff should get to the capieral idea that the ratio of population retal stock of the Wallace Automobile Comquirement is strictly limited to the ordinary pany. Plaintiff suggested the name of George inn and tavern and saloon class. See, also, W. Bremer as a possible purchaser, but the Blake v. Pleasantville, 87 N. J. Law, 430, record shows that he did not begin negotia431, 95 Atl. 113. Counsel for defendant have tions with him upon the subject, nor did he urged upon us that it was stipulated in this first bring the matter to the attention of Mr. case that the transient population of Spring Bremer, nor did he make the sale of the stock Lake in the contemplation of the statute, on to him. That was accomplished by the deAugust 1, 1914, was upwards of 4,000, and fendant. Mr. Bremer testified that he subthat there were at that time only three ho- scribed for the stock as a result of meeting tels in the borough, and that if they are to Mr. Wallace, the defendant; that he then be counted and the license based on the pop- made an investigation and decided to purulation of August 1, 1914, the license was

chase. Nowhere in the record does it appear properly -granted, because the licenses issued

that the plaintiff was the efficient, moving were not greater than one to each 500 of

cause of the sale, and, unless he was, he did such population.

not earn a commission. There was nothing As we have reached a conclusion sustain- ' in the agreement giving plaintiff an excluing the validity of the license on another

sive right to control the sale of the stock ground, we do not deem it necessary to ex-l within

essary to ex within any specified time. The mere suggespress any opinion on the soundness of this

tion of the name of a possible purchaser, contention, except to point out that the act

without more, was not enough. had plaintiff refers exclusively to cities bordering on the

rdering on the brought the parties together, for the purpose Atlantic Ocean, and Spring Lake is a bor

of effecting a sale, and if his introduction ough.

or his opening of negotiations had resulted The writ will be dismissed and the pro

in a sale, his commission would have been ceedings of the court of common pleas af

earned; but there is nothing in the evidence firmed, without costs.

to justify that conclusion. The established

principle that, where an agent has com(252 Pa. 323)

menced negotiations with a purchaser, the MACNEIR v. WALLACE.

principal cannot, pending the negotiation, (Supreme Court of Pennsylvania. Feb. 14,

take the matter into his own hands and com1916.)

plete it, has no application here. No negotia1. BROKERS Omw 53—COMPENSATION-PERFORM-| tions were pending when derendant broachANCE OF CONTRACT.

Plaintiff was not entitled to recover com- ed the subject to Bremer, nor did plaintiff missions on the sale of stock at the request of first bring the matter to his attention. As a defendant, where it did not appear that plaintiff matter of fact, the evidence tends to show was the efficient moving cause of the sale, and it that the

that the inducing cause of the purchase by did appear that defendant bad negotiated the sale himself.

Bremer was largely the promise of a salaried Ed. Note.-For other cases, see Brokers, position with the company, rather than the Cent. Dig. § 74; Dec. Dig. Om53.)

merits of the stock as an investment. We 2. JUDGMENT 199(3) — NOTWITHSTANDING agree with the court below that there was VERDICT.

nothing in the testimony from which the Where a verdict plainly indicates that the jury indulged in a capricious disbelief of the

jury could fairly find that plaintiff brought testimony, a judgment notwithstanding the ver

the parties together, or was in any way the dict was proper.

immediate and effective cause in procuring (Ed. Note.-For other cases, see Judgment, Bremer's subscription. On the contrary, the Cent. Dig. $ 367 ; Dec. Dig. 199(3).]

uncontradicted evidence shows that defendAppeal from Court of Common Pleas, Phil-ant, meeting Bremer accidentally, presented adelphia County.

the subject, gave him full details the next Action of assumpsit by Edwin Macneir day, had other meetings with him thereafter, against Robert Wallace for commissions on and finally induced Bremer to subscribe upon the sale of stock. From a judgment for de condition that he should have a salaried posifendant non obstante veredicto after verdicttion with the company. Under these circum

stances the court below was right in entering 5. PERPETUITIES 9(5) - ACCUMULATIONS – judgment for the defendant non obstante

An increase of the original fund passing veredicto.

into the hands of trustees and constituting the [2] A verdict which plainly indicates tbat corpus of the estate during the life of the life the jury indulged in a capricious disbelief of tenant by the receipt of an income exceeding her the testimony, should not be permitted to

needs and the expenses of administering the es

tate constitutes an unlawful accumulation in stand. Walters v. American Bridge Co., 234|

contravention of Act April 18, 1853 (P, L. 507) Pa. 7, 82 Atl. 1103; Lonzer v. Lehigh Valley S9, and the excess is distributable on the death R. R. Co., 196 Pa, 610, 46 Atl. 937.

of the life tenant as intestate property to the

testatrix. The assignments of error are overruled,

(Ed. Note. For other cases, see Perpetuities, and the judgment is affirmed.

Cent. Dig. $ 71; Dec. Dig. Om9(5).)

Appeal from Orphans' Court, Lawrence (252 Pa. 394)


In the matter of the Estate of Nancy Neel,
Appeal of WHITE et al.

deceased. From a decree dismissing excep

tions to the report of the auditor, Florence (Supreine Court of Pennsylvania. Feb. 21, E. White and others appeal. Affirmed. 1916.)

From the record it appeared that the au1. CONVERSION 15(2)—DIRECTIONS IN WILL ditor stated the following findings of fact -SALE FOR DISTRIBUTION. A will authorizing trustees to sell the real

and conclusions of law: estate when they saw fit, directing the proceeds

“(1) Nancy Neel died March 16, 1872, testate: thereof to be held on the same trust and for the

and for the by her last will, after certain specific devises to . same purposes as the personal estate, providing

oviding her brother Isaiah White, she provided as folfor the distribution of the estate in the form of

lows: 'I do will, devise and bequeath to my money on the death of the life tenant and giving brother Isaiah White, and my brother-in-law the trustees authority to sell any real estate then

John Taylor

* all my property and unsold, and requiring all the estate to be con estate, real, personal, and mixed, except what is verted into money and to be so distributed, so hereinbefore devised to my brother Isaiah, the blends the realty and personalty as to show an same to be held by them and the survivor of intent to create a common fund and to work a them, as trustees, for and upon the following conversion of the real estate.

trusts. (Here follows full authority to manage [Ed. Note.-For other cases, see Conversion,

and control the devised property and to sell real 15(2).]

estate, the proceeds to be held Cent. Dig. $9 30–32; Dec, Dig.

on the same

trusts,' 'during the life of' testatrix's daughter 2. WILLS 634(10)-CONSTRUCTION-VESTED | Adella). And the said trustees and the survivor OR OONTINGENT INTEREST.

of them shall apply during the life of my daughWhere a testatrix left her estate in trust ter Adella, so much of either income or prinfor her daughter for life with directions to the cipal in their charge as in their best discretion trustees to apply so much of the personalty or they may think proper to and for the mainteincome as they might think proper for the main-nance and support of my said daughter Adella. tenance and support of the life tenant, and be- | And I charge and direct the said trustees, queathed her estate in charge of the trustees at * * * that they provide liberally and well the death of the life tenant to the children of for her maintenance and support. And her the the life tenant, or, in case of death of the life said Adella's receipts for whatever moneys they tenant without leaving children or issue of de- or the survivor of them may see fit to give her to ceased child, to the brothers and sisters of the be expended by herself for her maintenance testatrix, the children of any deceased brother shall be sufficient vouchers for the same. * * * or sis

present his or her parent and I do hereby will and bequeath all my property take the share he or she would take if living, the and estate that shall be in the charge of said brothers and sisters of testatrix took vested in trustees, or the survivor of them, at the time terest in the fund subject to be divested by the of the decease of the said Adella to and among death of the life tenant leaving children.

the children of the said Adella, including the [Ed. Note.--For other cases, see Wills, Cent. children of any deceased child who shall repre Dig. $ 1498; Dec. Dig. Om634(10).]

sent his or her parent and take the share his or

her deceased parent would take if living, provid3. WILLS 630(1)–CONSTRUCTION"VESTED

ed that the said Adella shall leave at her deESTATE'' OR CONTINGENT ESTATE.

cease any such children or children of such deWhere there is a present right to a future ceased children. And in case that the said Adelpossession, though it may be defeated by some la shall not leave at her decease any such child future event, contingent or certain, there is

or child of such deceased child, then and in nevertheless a vested estate.

that case. I will. devise and bequeath all my [Ed. Note.-For other cases, see Wills, Cent. property and estate so in charge of my said trusDig. $8 1464-1467, 1480; Dec. Dig. Om 630(1). I tees or the survivor of them at the death of

For other definitions, see Words and Phrases, Adella to and among my brothers and sisters, First and Second Series, Vested Estate.]

share and share alike, the children of any now

or then deceased brother or sister to represent 4. PERPETUITIES 9(1) - ACCUMULATIONS - his or her parent and take the share he or she VALIDITY.

would take if living. And for the purpose of Act April 18, 1853 (P. L. 507) $ 9, prohib- 1 distributing the estate to and among whichever iting accumulations for any longer term than 21 class shall happen then to be entitled, I do auyears from the death of the grantor or testa- thorize and empower my said trustees Isaiah tor forbids accumulation resulting by indirection White and John Taylor, and the survivor of no less than where it is expressly ordered, and them, to sell any real estate then, at the death of if the carrying into effect of the provisions of the said Adella, remaining unsold, at private a will produces accumulations beyond the pre

or public sale and to make deed therefor to the 'scribed period, they are void.

purchasers thereof, and to convert all my estate [Ed. Note.-For other cases, see Perpetuities, into money, and to make distribution thereof as Cent. Dig. 8 67; Dec. Dig. Om9(1).]



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