Thomas & Barton Co. v. Thomas

Fifth Circuit

Thomas & Barton Co. v. Thomas

165 F. 29, 91 C.C.A. 67, 1908 U.S. App. LEXIS 4719

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 10, 1908

DocketNo. 1,788

StatusPublished

This text of 165 F. 29 (Thomas & Barton Co. v. Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thomas & Barton Co. v. Thomas, 165 F. 29, 91 C.C.A. 67, 1908 U.S. App. LEXIS 4719 (5th Cir. 1908).

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Opinion

PARDEE, Circuit Judge

(after stating the facts as above). An inspection of the bill shows a minority stockholder of a trading corporation complaining of the management of the majority, in which no ultra vires nor prima facie fraudulent act is sufficiently and specifically alleged, the pleader dealing only in general suggestions and allegations of fraud and conspiracy. All the facts alleged relate to the ordinary business and management of the corporation, and the real gravamen of the bill appears to be that complainant’s brother, A. A. Thomas, who was a leading partner in the old business of Thomas & Barton and one time manager of the corporation, is not by the present management permitted to be an active official, president, director, or clerk, and in such capacity to represent complainant’s interests and to oversee and help carry on the business. The amendment permitted on the hearing in the Circuit Court is too general in its averments to in any wise enlarge the scope of the bill.

The law of Georgia permits amendments to charters of corporations by proper proceedings before the Superior Court. Civ. Code Ga. 1895, § 2350 (6); Acts 1897, p. 28. The change of the name of a private corporation is not material (1 Thomp. Corp. § 82; 10 Cyc. 211, and cases cited); and, whether the name be valuable or merely designative and ornamental, the change thereof under and pursuant to law does not require the unanimous consent of the stockholders; and, in the absence of fraud, it is a matter of business management. All the authorities brought to our attention by counsel or found on our own search are in harmony with this conclusion.

[34]*34There are neither averments in the bill nor evidence in the record warranting an injunction restraining the dissipation of assets. In our opinion, there is no showing by averment, evidence, or argument warranting the retention of the bill for the purpose of ascertaining the actual value of complainant’s stock with a view to compel the corporation or the majority stockholders to buy or pay for the same. To carry out such purpose would be either to force a liquidation of the corporation (not alleged or shown to be insolvent), or the majority stockholders to buy or sell to protect their interests.

For these reasons the decree of the Circuit Court granting an injunction pendente lite is reversed, and the cause is remanded with instructions to dismiss the complainant’s bill for want of equity.

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PARDEE, Circuit Judge

(after stating the facts as above). An inspection of the bill shows a minority stockholder of a trading corporation complaining of the management of the majority, in which no ultra vires nor prima facie fraudulent act is sufficiently and specifically alleged, the pleader dealing only in general suggestions and allegations of fraud and conspiracy. All the facts alleged relate to the ordinary business and management of the corporation, and the real gravamen of the bill appears to be that complainant’s brother, A. A. Thomas, who was a leading partner in the old business of Thomas & Barton and one time manager of the corporation, is not by the present management permitted to be an active official, president, director, or clerk, and in such capacity to represent complainant’s interests and to oversee and help carry on the business. The amendment permitted on the hearing in the Circuit Court is too general in its averments to in any wise enlarge the scope of the bill.

The law of Georgia permits amendments to charters of corporations by proper proceedings before the Superior Court. Civ. Code Ga. 1895, § 2350 (6); Acts 1897, p. 28. The change of the name of a private corporation is not material (1 Thomp. Corp. § 82; 10 Cyc. 211, and cases cited); and, whether the name be valuable or merely designative and ornamental, the change thereof under and pursuant to law does not require the unanimous consent of the stockholders; and, in the absence of fraud, it is a matter of business management. All the authorities brought to our attention by counsel or found on our own search are in harmony with this conclusion.

[34]*34There are neither averments in the bill nor evidence in the record warranting an injunction restraining the dissipation of assets. In our opinion, there is no showing by averment, evidence, or argument warranting the retention of the bill for the purpose of ascertaining the actual value of complainant’s stock with a view to compel the corporation or the majority stockholders to buy or pay for the same. To carry out such purpose would be either to force a liquidation of the corporation (not alleged or shown to be insolvent), or the majority stockholders to buy or sell to protect their interests.

For these reasons the decree of the Circuit Court granting an injunction pendente lite is reversed, and the cause is remanded with instructions to dismiss the complainant’s bill for want of equity.

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Bluebook (online)

165 F. 29, 91 C.C.A. 67, 1908 U.S. App. LEXIS 4719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-barton-co-v-thomas-ca5-1908.