#### The Adamantine Brick Company et al. *vs.*Lauren C. Woodruff et al.

Equity. No. 6913.

Decided November 1, 1880.

The stockholders of a company, incorporated for the purpose of carrying on a business in which the public has no interest whatever, may depose its officers at any time without the formality of notice and trial, whenever in their judgment it becomes necessary to do so.

STATEMENT OF THE CASE.

Bill in equity for an injunction and account.

By an instrument in writing, executed May 11, 1876, Lauren C. Woodruff, of New York, acting through George E. Fisher and Wm. M. Ashley, agreed with Oscar A. Stevens and others to establish a corporation under the laws of Virginia, for the purpose of manufacturing bricks under a patent process, of which Woodruff was the owner. The capital stock was fixed at $75,000, consisting of the land and fixtures then in a brick yard controlled by Stevens, in Alexandria county, Virginia ; two brick machines and the patent right for making “the Adamantine brick” for said county and the District of Columbia. Ashley was to reserve ten per cent, of the stock as a compensation for his services in forming the coihpany, and the balance was to be equally divided between Stevens and his party on the one side and Woodruff* and party on the other. Ashley received his stock on condition that he should never vote against the interests of either party to the agreement. The contract further stipulated that the officers of the company for the first year should be: Stevens, president; Ashley, secretary ; Du Barry, treasurer *;*and Stevens, Fisher, Pullman, Ashley and Du Barry directors. Woodruff, though a stockholder, was not an officer.

The company, having been thus organized, found itself with a paid up capital stock of $75,000, but no cash in the treasury wherewith to carry on the business of brickmaking. Accordingly, at its first meeting, it was resolved to mortgage *319the company’s property to secure bonds to the amount of $25,000, and to sell them from time to time as funds were needed. The mortgage was executed and the bonds prepared, but, the prospects of the company not being flattering, they remained unsold, until, in February, 1877, "Woodruff, becoming dissatisfied with the condition of affairs, proposed through Fisher, one of the board of directors, to increase the working capacity of the brickyard by selling the company four more brick machines and taking the bonds at 85 cents on the dollar in payment. This was agreed to by the directors at a meeting held March 5, 1877, Fisher and Ashley voting for it, but Stevens, being opposed to incurring further liabilities, voting against it. Afterwards, Stevens refused to carry out the direction of the board. A meeting of the stockholders was then convened (May, 1877,) and Stevens and Du Barry, who sided with him, were, without notice, deposed from their offices, Woodruff being elected president instead and Pullman, treasurer. The board of directors was also reorganized, with Woodruff' and one Whitney, who was not á stockholder, substituted for Stevens and Du Barry. The four brick machines were then purchased and Woodruff took all the bonds at 85 cents on the dollar, put up the necessary machinery, amounting to about $12,000, and advanced seven or eight thousand dollars in money to carry on the business. The affairs of the company then went on until the ensuing February, when the interest on the bonds held by Woodruff:' having been more than two months overdue, direction was given by him to the trustees to sell under the trust. Advertisement was duly made, and on the 25th of April, 1878, a sale being had, Woodruff became the purchaser, as highest bidder, for $12,0005 which amount, with the exception of $760 paid in cash, he credited on the bonds held by him. Stevens was present at the sale and claims to have entered a protest. Woodruff' now took possession and conducted the business for seven or eight months, when he sold out to Pettibone for the .nominal sum of $33,000, being an antecedent debt due by Woodruff to Pettibone. During all this time the books of the company remained in Washington, in *320the possession of Ashley, who claimed to hold them as secretary of the company, and from him they were now taken under a writ of replevin sued out by Pettibone, with Fisher as bondsman. Stevens then filed this bill and the next day took forcible possession of the brickyard in Virginia, ousting Pettibone, and immediately thereafter filed another bill in Alexandria to enjoin Pettibone from regaining possession or disputing his title except in that suit, alleging that the company was in the lawful possession of its own property.

The objects of the bill in this case, which purports to have been brought in the name of “The Adamantine Brick Company,” and Oscar Stevens against Woodruff and Pettibone, as principal defendants, were, to enjoin the replevin suit against Ashley; to enjoin Pettibone from interfering with-the property of the *company;*to have the acts of Woodruff, as president, declared fraudulent and void, and that he and Pettibone be decreed trustees *ex maleficio*and owing an account; to have Woodruff surrender the $25,000 of the company’s bonds, and to take back the machinery; to declare void the deeds of trust upon the company’s property, and generally to restore matters to the same condition in which they were in February, 1877. The bill was signed by Stevens, as president of the company. Ashley, the defendant in the replevin suit, was not a party to the bill.

Answers were filed both in this suit and the one instituted in Alexandria, and on the application of Pettibone, a receiver was appointed in each jurisdiction to take charge of the property. This suit then came on for final hearing at special term before Justice Cox, who delivered the following opinion, dismissing the bill and restoring the property to the possession of Pettibone :

*Opinion of Mr. Justice*Cox, *in Special Term.*

In 1876, the Adamantine Brick Company was organized under that title with a nominal capital of $75,000. There was no money capital, however, in hand ; and, for the purpose of transacting its business, it was resolved at the stockholders’ meeting to issue bonds for $25,000, and execute a *321deed of trust on all the property of the company and its franchises to secure the bonds. The validity of this instrument and of these bonds, I believe, is not impeached. It was a transaction consented to unanimously at the first of the stockholders’ meetings.

This bill has been filed in the name of the Adamantine Brick Company and Oscar A. Stevens, praying the court to set aside, by its decree, the sale made under that deed of trust, upon the ground that the sale was procured by fraud, &c., and for certain other relief. I will examine the several transactions which are objected to in the order in which they occur.

It seems that Mr. Woodruff, who was the largest stockholder of this company, at a certain stage of its existence, that is to say, in 1877, came to Washington and proposed to the then president, Mr. Stevens, to sell to the company four additional machines to be used in the yard—his policy being to extend the operations of the company—and his avowed motive being to enlarge its business, and increase, as he called it, the producing capacity of the yard. To this, Stevens objected, his view being that the company ought to progress gradually and ought not to indulge in larger operations until it had obtained some credit, and its officers and agents had become experts to a certain extent in this business. Mr. Woodruff requested Mr. Stevens to call a meeting of the directors to consider his proposition, which he declined to do. At the next regular meeting of the directors, the proposition was submitted directly to them by-Mr. Woodruff, and was voted on favorably by Mr. Fisher, by Mr. Ashley, and Mr. Pulman, making a majority of that board—Messers. Stevens and Du Barry voting against it.

The first thing complained of is, that Fisher’s vote was an illegal one. The record of proceedings shows that Mr. Fisher, as the Jagent of Woodruff, submitted to the board his proposition to sell the machines to the company, &e., and it is said that he .had no right, acting in that capacity, to vote afterwards upon the propositon.

Now, if he was the agent of Woodruff to sell these *322machines to the company, he could not act in a double capacity, and represent the company, also, in buying the machines. But, if he was simply the agent to submit the proposition, there was nothing to prevent him from exercising his own judgment upon the proposition, and his own independent judgment as director of the company. If Fisher was under any obligation to Woodruff to advocate his proposition and press the sale, this would be incompatible with his duty as director to exercise his judgment on the subject for the *company;*but if his action was confined to the mere submission of W oodruff’s proposition, which is all that the evidence shows, this was not incompatible with the exercise of his independent judgment as a director in voting upon the acceptance of the proposition. I do not see, therefore, that the illegality of Fisher’s vote is made out.

The' next objection is to Ashley’s vote. In the organization of the company, Woodruff and others put in the patent rights and certain property and machinery, &c., upon the one side, and Stevens and others put in the real estate, and certain personal property of theirs on the other. Ashley was the party who negotiated the arrangement, and for his services he was to receive 10 per cent, of the stock, one half to be contributed by each of these two parties, and he stipulated that he would not vote his stock against the interest of either party. It is complained that this vote by him as director, was against the interest of the Stevens party. In the first place it does not follow from the fact that he voted against Stevens’ opinion, that he was antagonizing his interest. He may have conscientiously thought he was voting for the interest of all concerned. But in the next place, the agreement referred evidently to the voting at a *stockholder’s*meeting, where his vote had a weight proportioned to the amount of the *stock;*whereas, at a *director’s*meeting he had but a single vote, and was bound to exercise his judgment for the benefit of the whole company, and not for his, or others’ individual interest as stockholders. It does not seem to me, therefore, that his vote was a violation of his agreement.

*323Then the proposition was carried by a majority of the board. The purchase was made, and Woodruff agreed to accept the bonds of the company before referred to in payment. I reserve for notice hereafter whether Woodruff was guilty of any fraud in this transaction.

Afterwards a stockholders’ meeting was called, and at this meeting a resolution was passed declaring all the offices of the company vacant, and Mr. Stevens was summarily dismissed from office and Mr. Woodruff elected in his place, and some other changes made also. This also is said to be illegal on two grounds.

In this stipulation looking to the formation of the company, it was agreed that Stevens should be president for the first year, and in the application to the court in Virginia, which is equivalent to the filing of a certificate of incorporation under our law, Stevens was named as the president for the first year. Now, it is said this agreement was violated by his ejection from office. The agreement made before the organization of the corporation, I take it, was fulfilled when the corporation was organized, when Stevens was named as president for the first year. It was aeon tract by these parties as individuals. They could not control his retention in, or election to, office after the organization of the corporation. This rested thenceforth with the corporate body. The contract to vote stock thus and so, after the organization of the corporation, was to do an individual act within the power of the party, and that agreement might well remain in force. But the agreement made before the organization that Stevens should remain president for the first year, was fulfilled by the organization, and under the law he was the president for the first year—that was his term of office. But it does not follow that he was to remain in office under all circumstances. I take it, that according to the agreement and the law, he was to hold the office for that term, subject to the conditions attaching to all corporate offices, one of which is the inherent power of every corporation to *amove*every officer for cause. If he is removed in a regular manner, at a legally convened meeting, *324the removal afterwards cannot be questioned in the courts. If he is removed irregularly he may be restored to office.

Now, in this case, Stevens was not notified of any complaint against him, and in fact he was refused information as to the object of this call of the stockholders’ meeting, and he had no opportunity to be heard, and I take it that that is irregular ; that a corporation acting in this matter is just'as much bound by the rules of fairness as a justice of the peace is in a summary proceeding. The party must have his day and hearing, and notice of complaints against him. A corporate officer who holds office for a certain time cannot be removed summarily and without opportunity to defend himself against any complaint.

I have no hesitation, therefore, in saying that I think his removal from office was irregular, and that by proper proceedings he could have been reinstated in his office as president. But still he was out of office.

A corporate office is recognized in the law as just as much the subject of possession and dispossession as a house. If a man is elected to office, and receives the badges and insignia of office, and his authority is recognized by subordinates and members of the corporation, he is in the office ; but a man who has none of these things and is not recognized by the body, is out of office, whether rightfully or wrongfully. The law recognizes the acts of a *de facto*officer within the scope of the authority of the office as binding on the corporation. But it does not recognize the right of a man out of office, although he has been unlawfully ejected, to bind the corporation, any more than the right of a man out of possession of real estate, adversely held, to convey title.

Now, then, Mr. Stevens was unquestionably out of that office, and was no longer the *de facto*president of that company, and never was reinstated in that office, and never exercised any of the functions of that office up to the day when this suit was brought.

Meanwhile the interest upon these bonds accrued and was not paid, and the trustees, Messrs. Beach, of Alexandria, and James, of the Bank of Washington, were called upon, *325by Woodruff,, who then held the bonds in the manner in which I shall hereafter state, to sell out under this deed, and they did sell out the property and franchises of this company, and Woodruff was the purchaser at the sale for $12,000, I believe.

Under the statutes of Virginia the effect of a mortgage sale and conveyance, where the mortgage includes the franchise of a company, is a dissolution of the corporation. The law then provides that a purchaser at the sale becomes himself the corporation, under such name as may be designated in the conveyance to him, or under a writing filed by him in court. Some question has been made whether the title passed completely until those formalities are afterwards observed; but it does not seem to me that his assuming a new name is a condition to the transfer of the title and franchises. The conveyance itself, the law declares, shall *ipso facto*operate as a dissolution. If this conveyance, then, was valid, it was a dissolution.

Now, from the moment of this conveyance, Woodruff ceased to be president of this company. He denies, of course, the existence of the company any longer. He claimed to have the whole franchise under which it worked. He did not exercise any functions as president. The same may be said of the other officers of the company. They went out of office too. They acquiesced in this claim of Woodruff’s. They abandoned the offices. There were no longer any officers of that company. The company itself never had another meeting up to the institution of this suit. No persons in the name of this company exercised any corporate powers after this date. The company was as effectually dead, to all practical purposes, as if a judgment of forfeiture had been passed. The law does not require judicial dissolution. It gives the same effect to the mortgage sale, in the way of extinguishing the corporation, as if a decree of forfeiture had passed.

If there was fraud in the sale, it seems to me that the appropriate remedy would have been a writ of *quo*warranto, in the name of the State, to inquire by what warrant Wood-*326ruff claimed to have acquired the franchise of the original company. In such a proceeding, the question of fraud could have been determined, the sale set aside, and the legal existence of the company established; but this was not done. All the corporators seem to have acquiesced in this. *Prima facie,*the company was dissolved. Any court of common law must have held it to be dissolved until the act operating dissolution was complete. *Prima facie,*the company ceased to exist from that moment *de jure,*and certainly ceased to exist *de facto.*Some sixteen months after this sale, this suit is instituted, in the name of the original corporation, by Oscar A. Stevens, its former president. At this time there was no living person who could be recognized as a *de facto*officer of the corporation. As the court cannot recognize an officer of a corporation who is not a *de facto*officer as authorized to act for it, so it cannot recognize a corporation which has *de facto*ceased to exist, until, by some proceeding, it is restored to its former status.

Authorities have been produced to show that one who is expelled from the office of president, and is no longer *de facto*president, has no right to use the name of the corporation in bringing a suit. I cannot see that any one has authority to institute a suit in the name of this corporation until its existence *de jure*and *de facto*is directly established.

The complainant then in this case is merely a name. It is something which is said to have a right to exist, but does not exist practically. It is a mere abstraction, in fact, and a Virginia abstraction at that. The difficulty appears to be how the court can recognize such a body. There is a case cited, in New Hampshire, by counsel for complainants, under a law ■somewhat similar to this. The law there provides that a mortgage sale of the property and franchise shall operate to dissolve the corporation for general purposes, but that it shall continue in existence for the purpose of wiuding up its business. The difference between that case and this is that under the New Hampshire law, the corporation retains its existence. It has its organization and its officers. *327Whereas, in the present case these elements are wanting.

These are the technical difficulties which seem to me to stand in the way of an examination of the merits of this case. But if I am allowed to go into the merits, I will express the conclusions or impressions which I have reached from the consideration of the the testimony which I have listened to very attentively, but have not read.

In the first place, the sale of this machinery by a stockholder to the company, is charged to have been a fraud in law and in fact. These are facts which taken alone are extremely suspicious. Here is one of the principal stockholders owning private property which he almost forces upon the company against the protest of its president. The only way in which a direct fraud could have been perpetrated in this transaction was by misrepresentation or concealment as to the value of the property which was sold to the company. But I do not understand that to be the particular cause complained of here. It was sold on credit ; there was no money received for it. It was sold at a valuation which was agreed upon by Woodruff and the directors, for the sum of $12,000, I believe and I do not remember that any evidence was offered to show that this wasan over-valuation.

But the fraud complained of here is a more far-reaching one. It is complained that this was one out of a series of transactions, by which Woodruff' sought to get the company into his power, and to sell it out and acquire possession of the whole of the property.

Now, that might be, although it is rather a far-fetched conclusion from this fact, when we consider certain other circumstances I shall advert to. On the other hand it may be true, as he alleges'in his answer, that he had lost confidence in this company, under Mr. Stevens as president ; that it had been wholly unproductive after being in operation for a period of some four or . five months, perhaps, and that nothing was realized from it; and he became satisfied that the only way to make it productive was in selling these machines to the company, so as to enlarge, as he called it, *328the producing capacity of the yard. Now, whether that was the object, or the other one, is to be ascertained from other facts.

We find, going a little further, that besides selling this machinery on credit, and taking some of these bonds under the deed of trust, he went to work advancing money, and, after a series of advances and receipts, there resulted a balance in his favor of $8,000, which the company owed him. Now, it is not very usual for a man to not only advance about $12,000 of property, and some $8,000 or more of his money, for an untried and uncertain enterprise like this, unless he has the honest purpose of trying to make it succeed. It is improbable and unusual that a man would do that simply for the purpose of despoiling his associates of the property when it was clearly uncertain, and only of prospective value. Woodruff did advance all this money. There is no question of that, and it was some fourteen months after the sale before he undertook to foreclose this deed and sell out ,• and it does not look to me as if he was actuated, according to the weight of the evidence, by any other purpose,. as far as I have gone, than really to make this property produce something for the benefit of all parties.

Now, at the expiration of this time, April, 1878, the first installment of the interest on these bonds was due and unpaid. He called upon the company for payment, and they had no means of paying. And here this case approaches very closely to the case of Marbury and the Twin Lick Oil Company. Dr. Marbury had loaned $2,000 to the oil company. The interest was unpaid. He called upon them for payment, and, on their failure to respond, he directed a sale of the property. His own brother was the trustee ; and he purchased at the sale for $1,100, which was half the amount of his debt. In that case the court sustained the purchase.

Mr. Woodruff called for this sale, and he bought the property in for some $12,000.

Now there is another circumstance in the ease which renders this a little analogous to that. After Dr. Marbury purchased this property, he proposed to his associates to join *329with him in a new company, allowing them a little time ta consider the proposition, which they declined to do ; and he then went on and embarked his own funds in the enterprise—and by a lucky stroke struck oil, and made a considerable sum of money; and, after the lapse of some four years, these same gentlemen filed a bill charging him as trustee for their general benefit. In this case, long after the purchase of this property, and after Woodruff had been spending more money to develop the enterprise, he wrote to Ashley, who was representing his interests here, offering to sell out his whole interest in it to Stevens himself for less than his cash advances. Now, if that was communicated to Stevens, that would close his mouth forever; because, clearly, Woodruff" had a right to receive back his cash advances, and if Stevens refused a proposition of that sort, he could never complain afterwards that Woodruff" sought to deprive him of the benefits of the company ; and if the offer was not communicated to him, still it reflects back as evidence upon the whole conduct of Woodruff, tending to show that it was not an object to him to get possession of this property to the prejudice of his associates. The company having failed to be productive, it was his effort to save his property and money advanced—and, if it was necessary for him to get possession of the property even, he had a right to do it, provided he did it in a fair and legal manner, as by foreclosure and purchase. I am unable to see -any evidence of fraudulent design, from the beginning to the end, to get possession of this property for his own benefit and to the prejudice of his associates.

There is one more circumstance to be noticed here. The sale took place in April, 1878. Now, it seems to me that if these gentlemen objected to it, they ought to have acted promptly. Mr. Stevens was present, not threatening to impeach the sale, but simply reserving his right to claim damages personally against Woodruff" and Fisher, perhaps. But from April some fifteen or sixteen months elapsed, during which Woodruff* was spending money and attempting to develop the property, and during which time he made sale *330to Pettebone, and Pettebone was spending money in developing the property *;*and it was not until the property gave promise of some profit that this bill was filed. I think the gentlemen who were present at the sale, ought to have taken steps before the change of circumstances. And there is another reason why they ought to have moved promptly in the matter. The purchase was not absolutely void, but at most only voidable. If not avoided it worked a dissolution of the company. If they intended to avoid it, they ought on all accounts to have acted promptly, so that both the public and the members of the company might know whether its existence was to be continued or not. There was laches in this.

On all these grounds I think that the bill will have to be dismissed.

Prom this decree complainants appealed.

Durant & Hornor for complainants :

1. The agreement of the 11th of May, 1876, and the charter of incorporation, were binding in their provisions on the *corporators;*hence, their acts in turning out the president and board of directors during the course of the first year were illegal. Virginia Code, 1873, p. 553; Taylor *vs.*R. R. Co., Law Reports, 4 H. L., 632, 645; Spiller *vs.*Skating Rink, L. R., 7 Ch. Div., 368; 11 Ch. Div., 104.

2. The agreement was further binding on Ashley, so as to forbid the vote given by him at the directors’ meeting, March 5, 1877. And the vote of Pisher at the same meeting was illegal, because he was the agent of Woodruff, to sell the latter’s property to the company.

3. The electiou of Whitney, a non-stockholder, as director, was illegal.

4. The act of Woodruff, in selling his property to the company while he was president, and the purchase by the act of the spurious board of directors, was illegal, and another’ thread in the scheme of fraud.

5. The act of the directors, by which Woodruff obtained *331the whole of the bonds of the company, issued for an entirely different purpose, and signed by himself, as president, was a further step in the direction of fraud. By this he became a trustee, and is liable to an accounting.

6. The act of Woodruff, in availing himself of his fraudulent possession of the whole of the bonds to sell out the property of the company for non-payment of the first instalment of interest, and buying it in while he was president was a fraudulent act, and he remained trustee of" the property for the company. His final conduct is legal evidence of his intention from the beginning. Worsely *vs.*Demattos, 1 Burr., 484.

7. Pettibone took by his purchase no better title than Woodruff" had. An antecedent debt of many years standing is not a valuable consideration, and he was moreover affected with notice. Lead. Cas. in Eq., Phila., 1877, Vol. 2, 83-88.

8. Pettibone was affected with notice of whatever was in the line of his title. Cordova *vs.*Hood, 17 Wall., 5.

9. The company’s charter having been confirmed by judicial order, could only be dissolved by like order. A sovereign act of the State made the corporation, and such power alone can dissolve it. This is a matter of public policy. Kent’s Com., 12 ed., 312, and notes, Code of Va., 1873, p. 585; Bank *vs.*Dawson, 13 La., 497. In this case there was no decree of the court dissolving the corporation.

10. The trustee’s sale conferred upon Woodruff only an equitable or inchoate title. He was bound by law to make a new corporation, which could only be done by application to court; no application was made and no order creating a new corporation was passed. 19 Gratt, 593; 50 N. H., 50

Edwards & Barnard for defendants:

1. The decree dismissing the bill is correct, because there is no proper party complainant. There being no *de facto*corporation and no *de facto*board of directors to order the bringing of suit, the bill was filed without lawful authority. Ang. & Ames Corp., sec. 369 and notes; 14 Abb. Pr. (N. S.), 191; Lacey’s Railway Dec., 559.

*3322. The title to the officers of the company cannot be tried in this manner, but only by *quo warranto*or *mandamus.*Ang. & Ames Corp., secs. 734, 738, and note; 5 Abb. Pr., 171, 35 Mo., 14; 5 O. St., 238; High Extr. Remd., secs. 293, 677; 24 Barb., 587; 34 Eng. L. & Eq., 59.

3. Even if Stevens was president *de facto,*he could not, of his own motion, set the machinery of the law in motion by this proceeding. 1 Cush., 507; 14 Wis., 351; 22 Eng. Ch., 739-750, 36 Barb., 171.

4. The decree of dismissal is right on the merits of the controversy. (1) Because the property and corporation sought to be affected are foreign to the territorial jurisdiction of this court, and no adequate personal decree could be made protecting the interests of stockholders, they not being parties to the suit. 16 Wall., 446, 450; 13 Pet., 588; 1 Blatch. C. C., 628; 51 Barb., 378; 12 N. J. Eq., 31. (2) Because no decree can be made here which will affect the status of the *corporation*or *real*estate in Virginia. 2 McA., 465, 471; 6 Cr., 147; 6 Pet., 389; 7 Gill & J., 208; 1 Black., 286; Ang. & Ames Corp., sec. 104. (3) Because the grounds on which it is asked to enjoin the replevin suit can be set up as a defence in that suit, and Ashley, the defendant therein, is not a party to this suit. High on Inj., secs. 44, 50; 4 Dali., 1, 4, 6. (4) Because complainants are estopped by their knowledge and acts from questioning the regularity of the deed of trust, the sale, and the conveyance under which Pettibone, a *bona fide*purchaser, claims. 32 N. H., 295; 2 Black., 722; 16 Pet., 1; 11 Wall., 459; 23 How., 381. (5) Because there is no offer to restore to Woodruff or Pettibone, the consideration given for the bonds, nor the cash advances made in excess thereof for the use of the company. 2 Jones on Mortg., 1095, 1678; Bigl. on Fraud, 408; 77 Ill., 226; Reporter, Vol. 9, 778. (6) No fraud shown in the record ; and no conduct shown which would invalidate the acts and proceedings complained of. Twin Lick Oil Co. *vs.*Marbury, 1 Otto, 587; 77 Ill., 226; 16 Iowa, 284; 3 Gratt., 215; Code of Va., 557; 16 N. J. Eq., 229; 54 Pa. St., 233.

*333Mr. Justice Wylie

delivered the opinion of the court.

In this case, which was elaborately and ably argued here, and appears to have been argued with equal elaboration and ability in the court below, before Mr. Justice Cox, who prepared a written opinion in the cause, without going now over all the ground that was argued on both sides, we are content to affirm the decision below, for- the reasons given in Judge Cox’s opinion. There were a few things in that opinion that we might not agree with entirely, especially in regard to the power of the stockholders to remove the president of the company, which is the main question in the case. It has been argued that there ought to have been charges brought against him, and there ought to have been a day appointed for hearing them ; but in a case of this kind—of a company incorporated for the purpose of carrying on a business in which the public has no interest whatever, we think it may depose its president at any time. We think there is no evidence to sustain a charge of fraud in this case. It was merely a difference of opinion between the parties as to the policy to be pursued by the company. The president refused to carry out the policy which the corporators had adopted, and if the stockholders saw proper to remove him out of the way while he was so evidently obstructing that policy, they had a right to do so without the formality of notice and trial. There is no doubt that Woodruff desired to promote his own interests, which he had a right to do by the use of any lawful measures in respect to the management and control of the company. He had lost money by the concern, and the only probable way he had to save something from the unfortunate enterprise was to buy in the property. He seems to have been the only capitalist in the concern, no money having been put in by the other stockholders. The property of the company was sold at pub- . lie sale. The sale was fair, and the opportunity to buy was ' open to all, and he bought the property for what we must presume was its value at that time.

The decree is affirmed.