
    William D. Strobel, Jr., et al., Plaintiffs, v. Sylvester Brownell et al., Defendants.
    
    (Supreme Court, Monroe Equity Term,
    December, 1895.)
    1. Corporations — Contracts with directors.
    A contract made with a corporation by one óf its directors is not void, but voidable at the suit of the corporation or of its stockholders, if it refuses to sue. Such a contract will not be set aside, unless it appears that it is one which ought not to have been made, and by means of which the director has imposed upon the company, or taicen advantage of his position to get from it a larger compensation or greater profit than he ought.
    8. Same.
    A corporation engaged in the manufacture of plaster which had a small capital and which, by reason .of financial difficulty, had determined to incur no further expense and to close down until it should be deemed advisable to resume work, subsequently entered into a contract with its president, by which he agreed to have the work done, to keep the machinery and tools in repair and furnish supplies until the next annual meeting, for a specified .sum per ton of plaster delivered on .the cars, he having beén the only biddér for such contract. It appeared that the expense of doing the work had previously been about five cents per ton less than the sum specified in the contract, and that ¡since the contract was lét the: company has paid a. dividend of 10 per cent. Held, that such contract was not- an improper one* arid would not be set aside*
    Action by the plaintiffs, as stockholders-, of the Wheatland Land Plaster Company, to. cancel a contract- made with the defendant Sylvester Brownell. ■
    Prank E. Blackwell, for plaintiffs*
    J. .W. Taylor, for defendants*.
    
      
      Received too late for insertion in proper place.—[Rep.
    
   Rumsey, J.

The. Wheatland Land Plaster Company was- organized in the year 1891, for the1 purpose of mining' stone- which was suitable to be ground into plaster and grinding it and selling it after it was ground. The company, leased lands upon which the stone was to be found and erected a mill upon Allen’s creek, some little distance, from the place where the stone was to be mined, and commenced business in the early, part of the year 1891. The stock was- divided in 100 shares, of which the defendant Sylvester' Brownell owned somewhat more than half and the plaintiffs were owners of thirty-eight shares. '

Prom the time of the organization Of the company, the plaintiff, Hr. Strobel, was a director' and the treasurer of it, and, as' it. would seem, had active charge of the management.of the business.

The season for grinding and selling plaster-stone commences in December or January, ..and lasts until the- month of September or October, and for two or three months from that time until the ■ season commences there is no. market for plaster and none is mined or ground. In prosecuting the work of the company it was necessary to draw the stone when mined from the mine to the ■ mill to be crushed. This work was usually done by hired teams, because it would not be profitable- for the company to own teams which could not be worked continuously -during the year. So far as: can be ascertained from the proof, it was the custom to hire this work done at an agreed price1 per ton, although whether that is- so or not is; not perfectly certain .from- the evidence, .nor is it important.

It appears, from the testimony, that the receipts from the business of .the company had been used for the increase of the plant and the purchase of betterments, and that no dividends had been paid. The precise amount, however, which had been used for those purposes was not made to appear. It is quite clear that in the early part of the year 1893, and shortly before that time, the company was in some financial difficulties, the cause of which ■ is not very clear. As is not strange under such circumstances, as the result of the financial difficulties it is quite evident that there arose personal difficulties between some of the directors; probably because of the dissatisfaction with the condition of affairs, although who was to blame for such condition of affairs does not appear and perhaps it is not important. What that condition was, however, is very clear. In the early part- of January, the bills payable by said company amounted to $1,000 or $1,500, and the amount of cash on hand was less than $50. There were some moneys receivable for sales of goods, but those moneys would not be available for two or three months. The creditors were pressing and it was necessary to have the money to liquidate the debts of the company at once. Nobody seemed to be willing to do anything by way of enabling the company to borrow money, although at that time it is said that its credit was perfectly good. Such being the condition of affairs, the directors at a meeting held on the 17th of January, at which all the directors, except Brownell and Hadley, were present, voted that the company should incur ho further expenses; that all the employees should be discharged on the 21st of January, until such time as it should be deemed advisable to resume work; and the treasurer, Mr. Strobel, was instructed to carry that resolution into effect. Such seems to have been the condition of affairs on the 25th of January, 1893, when the annual meeting of the stockholders took place. At that time there was an election of directors and substantially the old board of directors was reflected. Strobel and Pease, however, refused to serve as such, and the defendant Helen B. Brownell and Daniel P. Campbell were elected directors in their places. It does not appear, however, that. Campbell ever served as director. The minutes show that his resignation was. accepted on the 6th day of March, 1893.

At a meeting of the new board on. the 6th day' of February, 1893, it was resolved that the treasurer should be authorized to make a contract to be good until the annual meeting in January, 1894, for hauling, crushing, grinding and loading plaster, into the cars .at fifty cents a ton.- The person with whom the contract should be made was not specified in the -resolution.. Afterward, -and presumably in pursuance of' that authority, the treasurer advertised for bids for doing that work and some other work of the same kind, which' was substantially everything necessary to' be done to mine, manufacture and market the plaster; saying that the bids would be opened on the 13th of March, 1893. It seems ■ that at that time but one bid was- offered, and that was made by the defendant Sylvester Brownell, and in pursuance' of that bid a contract was made with him by which he agreed to load and haul the stone from the mines of the company to the mill;, to crush and to grind it; to load the ground; plaster into the cars ready for shipment; deliver-all supplies needed for mining, plaster to' the' miners at the mines; to take to Mtonford or Caledonia everything about the mill 'for repairs that can be taken in a one-horse wagon, and to return the same after being repaired; to furnish oil for the mill; to keep all belts in.repair; to run the mill night and day if directed; to'sharpen the stone and keep it in good condition; to keep the machinery well oiled and in good working order, . for fifty cents a ton for plaster delivered on board the cars. This is the contract which the plaintiffs desire to set aside. At the timé of making of this contract Brownell was the president of the corporation.

There is no rule of.law, which forbids the director of a-corporation from making a contract • with the company. It is true, the director stands in the corporation in a fiduciary situation, and he is. bound under all circumstances and at all times to look to .the interests of the company whose agent he- is, .and he is not at liberty at' any time to put himself in any position by which he can make an undue or-improper profit out of the corporation for his own benefit. ■ But he may make a valid contract with it, provided that in doing so he.deals fairly and honestly toward the' stockholders who have appointed , him their agent. Barr v. The Pittsburg Plate Glass Co., 17 U. S. App. 124, 141. Every such contract made by a director of a company with a corporation ■ is looked at with suspicion, and if the transaction is attacked, the burden is upon the agent of the corporation, who has contracted, with it, to' show that it was honest and fair in all its parts and that he has made no. more profit out of the contract than any other person might properly have made. Gamble v. Q. C. W. Co., 123. N. Y. 91. Such a contract is not void, but is only voidable at the suit of the corporation or of the stockholders, if the corporation refuses to sue,' when it shall be made to appear that the contract is one which the director ought not to have entered into. Not being void, it necessarily is good until it has been set aside. Barr v. N. Y., L. E. & W. R. R. Co., 125 N. Y. 263. But it will not necessarily be set aside unless, in view of all the circumstances, it appears that the contract is one which ought not to have been made, and by means of which the director who has entered into it has imposed upon the company, or taken advantage of his position to get from the company a larger compensation than he ought or a greater profit than should have been made for the work which was done. Such I think is the fair' result of the cases which have been cited above, and is the general consensus of authority on that subject.

The leading casé on the subject is the Twin Lick Oil Company v. Marbury, 91 U. S. 587. That was an action brought by the corporation against a director to set aside a sale of the property of the corporation upon a mortgage’ which had been given to the director for money loaned by him to the corporation. The charge was that the money Was loaned at an improper rate of interest and that the director took advantage of the necessity of the corporation to make the loan and obtain the security. The Supreme Court of the United States, after a careful examination, affirmed the judgment of the court below refusing to set aside the transaction and holding the law to be substantially as stated above. The case of Munson v. S., G. & C. R. R. Co., 103 N. Y. 58, is not applicable to the condition of affairs shown here. The question presented there, as appears by the opinion of Judge Andrews, is whether the plaintiffs were entitled to the aid of the court to enforce an executory contract between themselves' on one side and the defendant corporation on the other, for the sale of the property of the plaintiffs to the corporation, in a ease where one of the plaintiffs, at the time the contract was made, was a director of the purchasing coiporation, and took part in making the contract upon which the action was brought. It is said that in that case the plaintiff stood in the attitude of selling as owner and pur chasing as trustee, and the result of the case was simply that when that condition of affairs appeared the court would not examine into the advisability of the contract, but if the corporation objected to carrying it out the court would not lend its aid to a specific performance. It is not a case where the contract had been substantially carried into effect for it, or where the action was brought for the purpose of setting aside. In such a case the court is at liberty to look into, the contract and the circumstances under which it was made, and- say whether it was a fair contract for the corporation, and one which, upon the whole, the director might properly enter into. This' was done by the court in the case of Twin Lick Oil Company v. Marbury, 91 U. S. 587, and in Barr v. Pittsburg Plate Glass Co., 17 U. S. App. 124, in which the court held the contracts valid-and refused to set them aside. The case. last cited,' decided by the Circuit Court of Appeals for the third circuit, is a very instructive one upon the subject: In this case, under all thé circumstances, I do not think that it was at all improper for Mr. ■ Brownell to make this contract with the company.

It appeared that the contract was to do substantially what the company had always employed men to do; that there were no teams or materials of the company on hand with which the company could do the work itself. There was no salaried officer of the company whose duty it was to superintend this work. It is fair to infer from the-small amount of stock, and the circumstances of the organization of the company that it was never intended to pay any person in the company a salary sufficient to warrant the hiring of a man competent to superintend this work. It had been done by Strobel without salary, so far as appears. What were the terms upon which he did it is-not clear. Mr. Brownell says that Strobel received twenty cents a ton for doing a portion of- the work which he agreed to do for fifty cents a ton. This Strobel denies, but he does not say precisely how he had been in the habit of doing it, or what was the manner in which the company paid for it. So it will be seen that making a contract for doing this work was in the ordinary course of business of the company and something of which no complaint could be made.

Was the price charged for doing this work, then, so exorbitant that it can be said that it was fraudulent as against the company to agree to pay it? Brownell himself says that it cost him more than the compensation he received to do the work. Mr. Strobel says that the cost to the company when he was the treasure).', for hauling from the mine, grinding, loading into the cars and weighing, was forty-five cents, so near as it was possible to get' at it, and that that was the price that he was accustomed to pay.

But it appears from the contract that Brownell was to do considerably more than that. He was not only to load and haul from the mine and grind the stone and load it on the cars, but he was to deliver all the supplies needed for that purpose at the mine; to keep the machinery in good working order; to draw the tools to he repaired when it was necessary. Precisely how much would be the expense of doing that work has hot been made to appear. It does appear, however, from the estimate of Brownell and one other witness, that the price of 'fifty cents a ton was not more than it was reasonably worth.

In coming to a conclusion as to this contract it is to he taken into consideration that it was let to the defendant Brownell openly and without any concealment, and that bids were advertised for, and that any person had an opportunity to hid upon the work. It seems that there were several people -who understood the value of it, and who-had in mind at least to bid for the job, and none of them saw fit to make any bid, so that it would seem that the work was not very profitable.

It appears from the testimony that since the contract was let toBrownell the company has paid a dividend of 10 per cent., so that certainly this work has not been paid for at a loss to the company.

At the time this contract was let, it appears affirmatively from the testimony of the plaintiffs themselves that there was no money of the company with, which to do the work, and unless some such means as this had been taken to canse it to he done, the company would have to suspend operations, as it did resolve to-do before this contract was let. It is fair to assume, from all these things, that the letting of this contract was essential for carrying on the business of the company, and I think that so far from being an invalid or improper contract, the making of it' showed good business judgment on the part of the directors.

For these reasons the action to set it aside must fail and the complaint must be dismissed, with costs.

Complaint dismissed, with costs.  