Land & Simmons Co. v. Arconti

162 A.2d 478, 223 Md. 204

• Court: Court of Appeals of Maryland
• Decided: August 24, 1960
• Docket: [No. 229, September Term, 1959.]
• Status: Published

Opinions

Henderson, J.,

delivered the opinion of the Court.

This appeal is from a declaratory decree that the proceeds of a $50,000 insurance policy upon the life of Bart Arconti, Senior, should be included as an asset in determining the book value of the decedent’s stock in the appellant corporation, pursuant to the terms of a stock purchase agreement.

There is little dispute as to the basic facts. The corporation was formed in 1948, and engaged in the general contracting business. Arconti supplied $5,000 cash, Land and Simmons $2,500 each. The Company was successful from the start. Land was President, Simmons a Vice-President and Treasurer, Arconti a Vice-President, and the three officers constituted the Board of Directors. Land and Simmons drew salaries, Arconti did not. Prior to November 25, 1952, Arconti held 250 shares, Land and Simmons 125 shares each. On the date mentioned, additional shares were issued on the basis of three for one.

On January 8, 1952, the Board of Directors adopted the following resolution:

“WHEREAS, Mr. Roland E. Land, our President, and Mr. Paul B. Simmons, our Treasurer and Vice-President, and Mr. Bart Arconti, Vice-President, have given untiringly of their time and services during the development of the business of the Company; and

WHEREAS, their efforts have resulted in the steady growth of the business as evidenced by the increase in book value; and

WHEREAS, the death of any one of these three officers and consequent loss of his services would seriously handicap the company and result in a loss of profits;

WHEREAS, each of them owns voting stock of the company; and

WHEREAS, the sale of their stock to outsiders would endanger seriously the future operation of the business; and

WHEREAS, the company’s cash position might be such that the company could not act as the purchaser of all or part of their stock; and

WHEREAS, the Board of Directors deems it advisable in the best interests of the company to take steps to protect the company against their premature loss and against the company’s inability to pay for their stock,

NOW THEREFORE, be it RESOLVED, that the company enter into an agreement with these Stockholders providing that on the death of any one, the corporation will buy and his widow or estate will sell his holdings in the common stock of the company, and

RESOLVED FURTHER, that the company procure term insurance policies on the life of Mr. Roland E. Land, the President, in the amount of $25,000, Mr. Paul B. Simmons, Vice-President & Treasurer, in the amount of $25,000, Mr. Bart Arconti, Vice-President, in the amount of $50,000.

RESOLVED FURTHER, that the Treasurer of the company be authorized and directed to pay the premiums on such policies of insurance as they become due. * *

In February, 1952, the Company procured insurance as directed, as the owner and beneficiary. The policy on the life of Mr. Arconti was converted into a “twenty pay life” on Feb. 4, 1955, when he was sixty years old. The policies on the lives of Mr. Land and Mr. Simmons were converted to “twenty-five pay life” contracts on Feb. 4, 1957, when they were 47 and 46 years of age, respectively.

On November 25, 1952, the Board of Directors approved an agreement under seal which was duly executed by the proper officers of the Corporation, and by the three stockholders individually. After reciting verbatim the resolution quoted above, and further reciting, “WHEREAS, it is a part of the plan, under the above Resolution, that life insurance be used as a means of providing all or a portion of the funds with which to finance the purchase of stock in the Corporation held by each of the above Stockholders, in the event of the death of any or all of these Stockholders,” the agreement provided:

“(1) On the death of either Roland E. Land, Paul B. Simmons, or Bart Arconti, Sr., The Land & Simmons Company shall purchase, and the decedent’s estate shall sell the decedent’s stock in the Corporation owned by him at the time of his death, to the extent that they have insurance and other funds available to purchase the same.

(2) The purchase price for any or all stock to be purchased under the terms of this agreement shall be an amount equal to the book value thereof, determined in accordance with accepted accounting practices, at the time of the death of the Stockholder whose stock is to be purchased.

(3) Upon the death of any of the above Stockholders, The Land & Simmons Company shall, within a period of thirty (30) days from the date of the death of such decedent, give written notice to the Executors of his estate, of its election to exercise its right to purchase the stock of such decedent, and shall, except as modified in Item 6, within a period of sixty (60) days from the date of such death, pay for said stock to the estate of the decedent, and the Executor or Administrator, upon receipt of such payment, shall deliver to the purchaser the certificates for said stock.

(4) In order to provide ready funds with which to finance the purchase of the stock from said Stockholders, in the event of their death, The Land & Simmons Company has procured life insurance as follows:

[Here were listed the three policies above mentioned, with Connecticut General Life Insurance Company.]

The above policies are five year term, with the privilege of renewal or conversion, without medical examination, and it is the definite intention of The Land & Simmons Company to convert these policies before the expiration of the five year period. All premiums are to be paid by The Land & Simmons Company.

(5) Should the net book value of the stock of the Corporation increase to a point where it appears that the above insurance will no longer be adequate to purchase the stock from the respective Stockholders at its book value, the Corporation obligates itself to increase said life insurance accordingly.

(6) If, upon the death of any one of the above Stockholders, the amount of the proceeds of insurance in effect on his life under this agreement shall exceed the purchase price of his stock, said excess amount shall belong to the Corporation. If the amount of proceeds of such insurance shall be less than the purchase price to be paid for said stock of any one of the above Stockholders upon his death, the Corporation shall be responsible for paying the balance of said purchase price, which shall be paid within one (1) year from the date of the death of the said Stockholder, and upon such payment, the estate of the said Stockholder shall deliver the stock so paid for, to the Corporation.

(7) If, upon the death of any one of the above Stockholders, he shall have already disposed of any or all of his stock in this Corporation, in accordance with the provisions of this agreement, the excess of the proceeds of the insurance on his life, over the book value of the stock held by him at the time of his death, shall belong to the Corporation.

(8) A Stockholder shall neither sell nor offer to sell, or otherwise dispose of, to a person not a party to this agreement, any of his stock in the Corporation until he has first offered the same to the other Stockholders, at a price established as directed by this agreement in case of the death of a Stockholder; and each Stockholder shall have .the right to purchase the stock of the Stockholder desiring to sell in the ratio that his stockholdings at the time of the offer to sell bear to the total stockholdings of all of the Stockholders except the one desiring to sell. jj< ;J: sji s>

[Other provisions implementing the agreement are not here relevant.]

On March 3, 1953, the Board of Directors adopted a resolution directing the President to purchase $10,000 worth of “Key Man Life Insurance” on the life of each, of which $5,000 should be payable to the widow of the decedent, and $5,000 retained by the Company. It is conceded that the proceeds of the $10,000 policy on the life of Mr. Arconti were properly included as an asset of the Corporation, and $5,000 thereof, paid to his widow.

On August 22, 1956, the Board of Directors adopted an amendment to Item 2 of the agreement above quoted, adding the following clause: “* * * but under no circumstances outstanding shares representing 25% of the Company’s stock be worth less than $25,000.00 in value or outstanding shares representing 50% of the Company’s stock be worth less than $50,000 in value.” This was duly executed by the parties. The minutes recited that the “above arrangement was felt to be in the best interest for the benefit of the widows of the Stockholders of the Company, which Stockholders have been responsible for the steady growth of the Company. The above stipulated amounts are covered by insurance in force * * *.”

The year end net worth figures (capital and surplus), as shown on the books of the Company, were:

1951 ....................... $ 41,863.77

1952 ....................... 51,823.75

1953 ....................... 62,443.12

1954 ....................... 66,628.72

1955 ....................... 74,567.37

1956 ....................... 89,608.27

1957 ....................... 102,498.61

Mr. Arconti died on December 22, 1958, and on January 23, 1959, the Company indicated its intention to purchase the 1,000 shares held by his executors for the sum of $50,000. This price was based upon a balance sheet prepared by the accountants for the Company under date December 31, 1958, which showed a total book value of $96,230.88. The $50,000 insurance proceeds then payable to the Company was in effect excluded in determining the $96,230.88 figure. Although the balance sheet showed the $50,000 as a “life insurance claim receivable,” it made an offsetting entry of $50,000 as a “reserve for acquisition of capital stock.” A footnote stated “no increase in cash surrender value on the policies covering the life of Bart Arconti is reflected in the above computation.”

At the trial of the suit for declaratory relief filed by the executors, the complainants produced two qualified accountants, and proffered the testimony of a third, who testified, in effect, that the $50,000 insurance proceeds should have been included in the computation of the purchase price. They pointed out that under accepted accounting practice, since the premiums were paid out of Corporation funds, and the Corporation was the beneficiary of the policy of $50,000 upon the life of Mr. Arconti, the cash surrender value of this policy should have been shown on the books as a corporate asset, as indeed it was. Upon the death of the insured, the proceeds or face value of the matured policy should be shown as a corporate asset. It was not proper to offset the liability to purchase the stock as a deduction, because such purchase would result in the acquisition of treasury stock which should be carried at cost. Even if this stock were retired, the shares of the surviving stockholders would be enhanced in value, to the extent of the cash proceeds of the policy used for the purpose of the retirement. They fixed the purchase price, on the basis of book value at the time of death at $71,765.64, rather than one-half of the figure arrived at by the Company accountant, which was brought up to $50,000 under the amendment to Item 2.

The accountant called by the defendants did not seem to differ as to the correct accounting practice. He did not deny that the proceeds of the matured policy was a corporate asset. But he took the view that the question whether the $50,000 should be included or excluded would depend upon the intention of the parties, and that was a legal question, not to be resolved by accounting procedure. He declined to express any opinion as to the proper construction of the agreement. He did not think the phrase “book value determined in accordance with accepted accounting practices” was controlling, since either treatment would be proper if specified in the agreement.

For present purposes we may assume that the meaning of the term “book value”, which is generally understood to be the value indicated by the excess of assets over liabilities as shown by the books, would not be materially altered by the addition of the words “determined in accordance with accepted accounting practices.” The cases, in this State and elsewhere, seem to be in accord on the proposition that if the items actually entered on the books are erroneous, or do not reflect the true state of affairs, adjustments may properly be made on the basis of an audit of all the books and records to accurately determine the net worth. See Hagan v. Dundore, 187 Md. 430, 443, and Aron v. Gillman, 128 N. E. 2d 284 (N. Y.). See also the cases collected in a Note 51 A.L.R. 2d 606, superseding the Note in 33 A.E.R. 366. Thus the mere fact that it would be necessary to recompute the book value following the death of the insured would not be a fatal objection. The policies were in the possession of the Corporation, and in fact their cash surrender value was carried on the books, as we have noted.

The appellees strongly rely upon the cases of Block v. Mylish, 41 A. 2d 731 (Pa.), cited in the Hagan case, supra, and Rubel v. Rubel, 75 So. 2d 59 (Miss.). These cases held that the proceeds of a policy upon the life of a deceased partner, payable to the partnership, should be included in the purchase price of the share of the deceased partner, at book value or a percentage of book value, under an option to purchase. We think these cases are directly in point, and not distinguishable on the ground suggested by the appellants, that the agreements referred to a complete inventory of assets, or all assets. The term “book value” would seem to imply a complete inventory, in the absence of other language from which an intention to exclude could be gathered. Moreover, the expression “at the time of death”, would hardly permit the use of a statement prepared on the basis of a time antecedent to the death.

Nor do we think the situation is any different in the case of a partnership and in the case of a corporation like that in the instant case. In 2 O’Neal, Close Corporations, § 7.26 the author states: “Whenever a corporation, in order to fund a stock-purchase agreement, takes out insurance on the lives of its stockholders and pays the premiums on the policies, each shareholder of course indirectly pays part of the cost of the insurance on the lives of his fellow stockholders. Therefore, unless the value of the insurance is taken into consideration in fixing the valuation to be placed on a decedent’s interest, the result of the stock-purchase arrangement is to transfer his interest to the survivors at considerably less than its full value. To determine fairly the value of a decedent’s interest generally requires inclusion in the valuation placed on the business of not only the cash surrender value of the policies insuring the lives of the shareholders but also the proceeds of the policies insuring the life of the decedent to the extent that those proceeds exceed the cash surrender value of the policies on his life.” See also the discussion of the problem in Davis, Recent Developments in Business Purchase Agreements, 94 Trusts & Estates, 284, 329 (1955). There can be little doubt that the value of the decedent’s stock is increased pro tanto by the maturity of the policy held by the corporation. As Davis points out, the chances of benefit may be approximately even in the case of stockholders with the same life expectancy. But in the instant case, Mr. Arconti was about fifteen years older than his associates, so that his expectancy was far less. In Rollman v. Rollman, 175 Md. 379, 383, a case involving a verbal agreement as to the treatment of the proceeds of policies on the lives of partners, Chief Judge Bond, for the court, referred to the “unlikelihood that either partner would provide insurance on his life for the benefit of the other to the comparative neglect of his wife and family”. So, in the instant case, it does not seem likely that Mr. Arconti intended that an asset paid for by the Company, and constituting about one-third of its net worth, should inure to the benefit of his surviving associates rather than his estate. It is the general rule that agreements should be given a fair and reasonable construction, where the language permits. Cf. Gibbs v. Meredith, 187 Md. 566, 570, and Sorensen v. J. H. Lawrence Co., 197 Md. 331, 336.

The appellants point to certain provisions of the agreement which, they argue, show an intention to exclude the proceeds. Item 5, they contend, contemplates that the Corporation carry at all times enough insurance to completely fund the stock purchase. It is true that inclusion of the insurance asset would have the effect of requiring a pro tanto increase in the amount of insurance carried to completely fund the obligation to purchase, but the calculation would not be too difficult. We think the inference to be drawn from Item 5 is greatly weakened by the fact that in the recitals and in Item 6 there is language clearly indicating that the Company might be required to supplement the insurance by other cash disbursements. The appellants’ argument that the agreement was designed to provide “Key Man” insurance, as well as a stock purchase fund, is weakened by the fact that separate provision for that purpose was made in 1953. The appellants also argue that the amendment of 1956, fixing a minimum price at the amount of the insurance, could only have been adopted because the parties believed that the net worth, exclusive of insurance, was less than $50,000. But that does not follow. The purpose of the amendment may have been to increase the amount of the purchase price, or it may have been to make certain that, regardless of future losses, the estate of the decedent would receive at least the face amount of the policy. The appellants also rely upon Item 8, which fixes the lifetime offer to sell stock “at a price established as directed by this agreement in case of the death of a Stockholder”. They argue that this could not include the face amount of the policy. But the reason it could not is simply that the policy would not have matured. There is no suggestion that the price would not include the cash surrender value of the policy. The fact that such values were shown on the books would seem to indicate that the policies were to be treated as assets in fixing the price, whether before or after death. Item 8 tends to support the appellees’ theory of the case.

The appellants strongly urge that the chancellor erred in refusing to admit proffered testimony tending to show the real intention of the parties, based on statements made to insurance agents and others by the decedent and the other parties, and testimony of Mr. Land and Mr. Simmons, as to their belief that, in computing the purchase price, the proceeds of the policy of a decedent would not be included. We think the evidence was properly excluded. Extrinsic evidence as to the negotiations leading up to the integrated agreement under seal, cannot vary the terms of that document. Cf. Bishins v. St. Barnabas Corp., 221 Md. 459, 463, and cases cited. Nor can subsequent statements of the parties as to their interpretation, or misinterpretation, of the written documents, vary its terms, under the circumstances here present. Cf. United States Naval Academy Alumni Ass’n v. American Pub. Co., 195 Md. 150, 157. We agree with the chancellor that the words employed are not so ambiguous as to let in testimony to defeat the plain meaning of the language employed, in the light of the circumstances surrounding the execution and the purpose of the parties making the agreement. To do so would write in an exception not to be found in the agreement.

Since we base our conclusion on this phase of the case upon the Parole Evidence Rule, we find it unnecessary to discuss the contentions of the appellants that the individual appellants were not proper parties, and that the Dead Man’s Statute does not apply. Nor do we think the proffered testimony would be admissible on the theory of reformation because of mistake. Cf. Brockmeyer v. Norris, 177 Md. 466, 473.

Decree affirmed, with costs.