Steelman v. Oregon Dairymen's League

192 P. 790, 97 Or. 535, 1920 Ore. LEXIS 261

• Court: Oregon Supreme Court
• Decided: October 5, 1920
• Status: Published

Opinion

BURNETT, J.

It was competent for the plaintiff as an individual, irrespective of his holding stock'in the defendant corporation, to contract with it as effectually and to all intents and purposes as if he had no share of the stock of the defendant. The contract itself is the measure of the rights and liabilities existing between the plaintiff and the defendant as contracting parties. The action of the stockholders in meeting could bind nobody but themselves, for, as said in Section 6691, L. O. L.:

“From the first meeting of the directors, the powers vested in the corporation are exercised by them, or by their officers or agents under their direction, except as otherwise specially provided in this chapter.”

1. There is no provision of law in Oregon whereby the stockholders shall directly exercise any authority over the corporate concerns. They elect directors, it is true; but when these directors are thus chosen and qualified the powers of the corporation must be exercised by them. At the utmost, the resolution of the stockholders, “that all loss sustained by the defendant through any arbitrary action of the distributors should be borne by all league members shipping their milk into the Portland market,” could be only an expression of their opinion concerning the proper policy of the company. The only interest the defendant had in the transaction consisted of the commission it was entitled to charge. The pleadings show that it was merely an agent for the parties with whom it contracted to secure purchasers and collect the proceeds of the sales. It was not within the scope of its contract, or of its articles of incorporation or by-laws, as they appear in evidence, to apportion gains and losses among the several stockholders. It did not contract with them collectively. The • agreement upon which the action is based is made by the defendant with the plaintiff alone and singly. No claim of the defendant upon the money coming into its hands is disclosed by the pleadings, except its percentage of five cents per hundredweight of the milk which had been sold. It admits collecting the money from the plaintiff’s consignee. Even conceding that the action of the executive committee was legitimate and authorized, the defense amounts to saying that while there may be some amount of money at variance between the plaintiff and the defendant, it is not yet ascertained from which one a.balance is due, the plaintiff or the defendant.

2. According to Section 74, L. O. L., as amended by Chapter 8, Laws of 1915 :

“The counterclaim * * must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in (the action, and arising out of one of the following causes of action: * * in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.”

If the plaintiff was liable by reason of the action of the stockholders, to anyone, it would be to his fellow stockholders, who had suffered greater loss than he, and not to the defendant, for the latter hád no interest in the question of whether the stockholders gained or lost on the sale of their milk. The utmost concern it had, as already pointed out, was its commission, which in this instance has been satisfied. The corporation itself would have no cause of action against the plaintiff for loss accruing to any stockholder by reason of his failing to get a contract price for his milk. Moreover, the pleading does not show that the cause of action, if it was one arising out of the action of the stockholders or of the directors, existed at the commencement of the action. Indeed, the most that can be claimed for the answer is, that the defendant has held up part of the plaintiff’s money with the expectation that a cause of action might be framed against him in the future, by an adjustment of the accounts, but that it does not exist at present, much less at the commencement of the action.

3. So far as the result of the case depends upon the plaintiff’s presence at and participation in the meeting of the stockholders, the evidence does not sustain the allegations of the answer on that subject. The only witness for the defendant who speaks about that matter declares in substance that on the roll-call of the stockholders at the meeting the plaintiff was noted as present. In answer to this question: “Do you know whether he was present at the time?” he answered: “Tes. Well, I am pretty sure he was, because we called the names.” When asked if the plaintiff was- present when the resolution was voted upon, he said: “I am not sure at the time the vote was taken.” In connection with that matter, counsel for the plaintiff announced at the trial as follows:

“If the court please, to save time in this matter, I am willing to admit that the plaintiff attended this meeting, was there a short time, but deny that any discussion on this subject was up while he was there, or that he had’an opportunity of voting on it.”

4. The notice of the meeting of the stockholders, as appears by the record, is that it was called for June 22, 1918, “for the purpose, first, of considering and voting upon the question of increasing the capital stock of this company, and, second, for the purpose of considering and acting upon measures for the betterment of the milk industry of the members of the league and the milk situation in general, and to adopt measures for the carrying out of any plans that may be adopted by said meeting.” A notice so indefinite is not sufficient to charge a stockholder with what may be done at such a meeting, unless at least he is present and affirmatively participates in the action in question.

Aside from the proposition that the testimony on behalf of the defendant fails to prove its allegation as to the part the plaintiff took in the stockholders’ meeting, we are concluded by the principle that the findings of the court amount to a verdict, which is final, if there is any competent evidence to support it.

There is evidence sustaining the court’s findings, and for these reasons the judgment rendered thereon must be affirmed. Affirmed.

McBride, C. J., and Benson, J., concur. Harris, J., concurs in the result.