The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-01-19

CASE PUT
Brief Showing Matters
at Issue in the
Contest.

In the quo warranto case of Waite
c. Peacock VS.. Alexander CARVE
pending before Judge Lindsay, a brie
| Of eighteen typewriter pages was yes
terday filed by the attorneys for petit
| toner, c. ". Ashford, r. w. Breck'
ons and Samuel Noar. The action il
to question the legality of the election
| of officers of w. c. Peacock & Co,
Ltd. and hinges on the validity OF the
meeting Of stockholders on September
Is, 1905, at which CARVE and asso-
ciates were elected.
| It is set forth in the brief that the
annual meeting was regularly con-
vened July 81 in order to conform 20
| the bylaws, and with no intent TO
| elect officers at that time but with the
purpose to adjourn until the financial
reports-of the treasurer the manager
and the auditor-should be ready for
submission. This intent was not ex-
pressed SO clearly in the minutes as it
was stated in the testimony of Pea
cock and Lansing. In the minutes 1t
was recorded that the meeting ad-
journed owing to the fact" that these
reports were not ready. The brief
makers go at Mr.. Bottomley, one of
the sitting officers, hammer and tongs
for now making an effort in his testi-
mony, TO import an additional and
kindred reason TO that expressed
hi of n
They speak of his cutting rather a
sorry figure upon the witness stand"
and say:
This strange and until now I'M
heard of reason suggested by him was
that the adjournment was taken, not
for the purpose expressed by him III
his motion, but solely for the purpose
of awaiting the expiration of the three
days then required to make up the
week which, at a previous meeting or
the directors, had been allowed to Mr..
Rothwell, the manager, wherein to
meet certain charges heretofore pre-
ferred against him in a written report
or complaint of the president"
There is much more on Mr.. Bottom
ley's testimony, and, with the under
standing of the facts shown by the
authors, the brief suggests a division
of the question of the legality of the
meeting of September 10 into a num-
Der of subheads Several dictionaries
are ransa cked for definitions of the
verb adjourn and it's deriyat iveS.
1t is concluded that there are two kinds
of adjournment, namely, to a day GER
tain and to an indefinite time, the
briefists arguing that the adjournment
of July 81 was of the latter class. In
haf he
ing of 1905 died on that day, and no
manner of notice and no reconvening
of the stockholders could possibly gall |
vaniZe" it into life. Hence the Sept |
Is meeting was not such a meeting as !
was authorized to elect officers of the
corporation
If they assumed that the meeting |
could reconvene to complete its bust |
ness, they were then confronted with |
the query as to how such reconvention |
should have been procured, and by |
whom called" This proposition leads |
up to a discussion of the words cali
and notice" and the authors, quot
ing legal work and the Peacock by
laws, show that certain officers are in
vested solely with authority to call d
of stockholders. The president
is the leading functionary in this re
gard, and the evidence is cited as con-
clusively showing that the president
(Peacock) was daily in his office and
available for the issuing of all neces-
sary calls. 1t was not disputed that |
he did not in fact call or direct the
calling of the meeting of September Is.
meeting not properly called is not
valid. This proposition is argued in
some few hundreds of words. Then it
1t contended that the notice was in
sufficient, several stockholders having
been notified at and after 5 p m. of the
L4th Tor the meeting at 2 .. m. on the
ioth Many authorities are quoted to
show that meeting of a corpora ton
on board of trustees not held upon due
notice cannot legally perform the bust
ness proposed unless by unanimous ac-
ton of all persons entitled to be pres
ent. Authority is also quoted for the
1octrlne that where a meeting adj
Iourns to a time contingent On some
-hlng happening it cannot legally reas-
semble unless that very thing has hap
oened. In this case the contingency
lad not happened-being the submits
ion of the financial reports above
mentioned.
Should the court hold that the meet {
ng was valid, then it is submitted that I
he validity of Garvie's election de-
bends on the validity of two certain
'foxies voted by him at that meeting,
ldheiy, one not produced, but testi-
ied TO have been signed by S. NJ Da- I
hoh' providing for the vote of 3S7 1-2 I
mares or stock belonging to petitioner
FeacocK), and proxy which was pro- e
-uced' Tor a 1-2 shares, belonging TO q
ing Chong Co. 1t is argued at length
nat MI Damon had no authority to -
ign proxy under a power given to
'lshop & Co. For one thing it is claim
q mat the death of two partners dis
owed the partnership, the brief say
ng:
1t IS true that the articles of part
efShlp between those three gentlemen
SShfne TO provide that the death or s.
ihdFaWal of one member of the firm a
1lL not dissnlNa ha nanctro.rl,i-,