
    James Murray, Suing on Behalf of Himself and Other Stockholders of Besson & Co., Similarly Situated, Appellant, v. Edward S. Smith, and Others, as Executors, etc., of Millard F. Smith, Deceased, and Besson & Company, a Domestic Corporation Respondents.
    
      (Supreme Court, Appellate Division, Second Department,
    
    
      March 12, 1915.)
    Corporation—Representative Action by Stockholder—Liability of Estate of Deceased Officer—Loans Made by Business Corporation Out of Surplus Profits—Ratification of Ultra Vires Acts by Acquiescence—Sale of Goods to Offices of Cobpobation—Obligations of Officer as Fiduciary—Right to Accept Security for Debt Owed by Fellow-officer—Increase of Salaries—Resolution Passed by Vote of Officers Receiving Salary-—-Informal Meeting—Loans to Directors Personally Malum Prohibitum—Such Acts Cannot Be Ratified—Laches—Evidence—Proof of Loss to Corporation Not Essential.
    A surviving officer and stockholder of a domestic business corporation which had consisted of only three members Who brings a representative action against the corporation and the representatives' of the two deceased members, is not entitled to a judgment compelling the representative of one of the -stockholders to turn over to the corporation the amount of a loan- which was made by the corporation to a third person Who was a relative of the deceased stockholder, where it appears that the loan was made from surplus profits of the corporation which had -been -accumulated with the consent of all the stockholders, -and it is admitted that the borrower, w-ho -had paid interest on the loan and greatly reduced it, is h-ereself financially responsible, if the plaintiff had access to the books of the corporation- for many years and the loan had appeared on- the yearly statements without objection on his part. This, because, even if the loan were ultra vires, it was not mala prohibita, and the plaintiff, by his silence, had acquiesced in and ratified the same.
    
      It seems, that a business corporation may temporarily loan its surplus funds on safe security when it is inexpedient to distribute them among the shareholders, and even if such loan be ultra vires the corporation, it is neither malum prohibitum nor malum in se, and hence may -be ratified by a stockholder.
    Nor in- such action can the personal representative of one stockholder he required to turn over to the corporation the amount of a debt due from another deceased stockholder for materials sold to him by the corporation in its line of business, upon a theory that the stockholder whose estate is sought to be held was guilty of a breach of his fiduciary obligations because he accepted an assignment of insurance on the life of the stockholder who purchased the material, as security for a sum owed to 'him, or because his executors subsequently accepted a conveyance of real estate for the discharge of such indebtedness.
    Nor can the surviving stockholder require the representatives of the deceased Stockholders to- pay back into the treasury of the corporation the amount of an increase in their salaries, as officers, although the increase was made pursuant to a resolution in favor of which said stockholders had voted and against which the plaintiff had registered his vote, where it appears that such salaries were not excessive in the light of the services rendered by the deceased officers and the increase 'had been paid for many years without active objection on the part of the plaintiff.
    The resolution to increase the salary in favor of which the recipients voted was voidable, not void.
    
      It seems, that it was not necessary to call a formal, separate meeting for the purpose of considering the resolution for the increase of salaries, where all of the directors actually met at a special meeting and voted upon the resolution.
    But in such action the representatives of the deceased directors may be compelled to pay .back to the corporation loans made by it to the directors personally, even though the plaintiff acquiesced in the loans for a long period of time, for such loans were malum- prohibitum, and could not be ratified.
    A recovery of such loan's- is not barred by the laches of the plaintiff, for laches rest upon estoppel, and, moreover, his action is not .barred by laches, but by the Statute of Limitation, which is ten years.
    Where the stockholders remained directors of the corporation until their death, the Statute of Limitation did not begin to run against them until that time.
    In order to recover illegal loans made to the directors personally the plaintiff need not prove a loss to the corporation, for as a stockholder bringing a representative action he has a right to insist that the illegal acts be undone.
    Appeal by the plaintiff, James Hurray, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 29th day of April, 1914, upon the decision of the court after a trial at the-Westchester Special Term.
    George W. Elkins (James M. Hunt with him on the brief), for the appellant.
    Robert H. Wilson, for the respondents.
   Jestks, P. J.—

In 1897 a domestic corporation called Besson & Co. was organized to deal in lumber, coal, wood and building materials. All of the capital stock, 205 shares, was issued to Smith, who gave 40 shares to Murray and 5 shares to Disosway, and there was no change in those holdings until Smith died. These three men became and remained throughout the directors. Smith became president, Murray vice-president and manager, and Disosway, secretary and -treasurer. There was no change in these officers until Smith died. The corporation was in the full sense of the word a venture, because the firm of Besson & Co., its predecessor, had become insolvent and was virtually moribund in 1897, so that Smith, its creditor in- a large sum, had taken over its business, assumed its liabilities and had caused the organization of the corporation. ¡Naturally enough, these three men seemed to deal with this close coi*poration as if it were a copartnership. Corporation procedure, observed somewhat for some time, fell into desuetude, and so from 1903 until 1912 there is no record of any meetings of directors or of stockholders, and there is proof that there was none. However, corporation books were kept, and at the end of each year a statement of the condition of the corporation was furnished to each stockholder. The corporation was successful, for although no dividends were paid, yet at the death of Smith it had a surplus of more than $50,000 and there were no creditors. There seem to have been differences, but there is no proof of any dissensions while Smith and Disosway were alive; Disosway survived Smith but a few months. After the death of the former, Murray sought to sell his stock to Smith’s representatives, but there was no sale. Row, when Smith and'Disosway are dead, Murray brings this stockholder’s representative action to compel the executors of Smith to pay into the treasury of the corporation, moneys, on the theory that they were taken therefrom by a breach of the fiduciary obligations of Smith to the corporation. The corporation answered, and the defendant executors answered separately, denying some of the allegations of the complaint and pleading acquiescence and ratification and Statute of Limitations. At the close of the case the court thought that upon the proof the plaintiff was not entitled to any relief and dismissed the plaintiff on the. merits. The plaintiff accordingly appeals from the judgment. I think that the judgment in its entirety cannot stand.

Some of the transactions for which Smith may be held responsible are of such a character, especially as mala prohibita, that the defenses of ratification or acquiescence, nr in view of the circumstances the defense of the Statute of Limitations are not available, while others of the transactions are open to the defense of ratification and acquiescence. The discussion is naturally divided by these two classes, and I shall consider first the transactions that are immune from this attack by this stockholder. The trial court made many findings, but it is unnecessary to reproduce them or to epitomize them now, inasmuch as I shall discuss the facts later on as they are supported by proof, and, therefore, justly found by the court. The court found without exception that, prior to May 2, 1899, Ellen W. Besson, a connection by marriage of the said Smith, received about $6,600 moneys of the corporation, and that such moneys were loans. The loans were entered and carried on the books of the corporation, but there is no record of the manner, or of any corporate procedure, if there were any, whereby this money was lent to Mrs. Besson. The court found without exception that this money had been taken from the treasury of the corporation, and the record,' though vague, indicates that the time was in 1899. In the absence of all other proof which, were the fact otherwise, would have been forthcoming (for none knew the affairs and details of the corporation better than the plaintiff, as I shall presently show), we may infer that this money was taken from the surplus moneys of the corporation. It has been held that corporations “ may temporarily lend their surplus funds on safe security when it is inexpedient to distribute them among the shareholders.” (Morawetz Priv. Corp. [2d ed.] § 367 ; Cook Corp. [6th ed.] § 681 ; Garrison Canning Co. v. Stanley, 133 Iowa, 57, 60, and cases cited. See, too, the intimation in McFarlan v. Triton Ins. Co., 4 Den. 392, 397.) There is no proof that it was expedient then or at any other time to distribute the surplus, which at the time of Smith’s death was, as I have said, more than $50,000. There is no proof that there was any distribution at any time, or that dividends were ever paid, and there is xto proof that the plaintiff or any other of the two stockholders suggested or asked for distribution or for dividends. Thus it appears that this policy of conserving the surplus was acquiesced in by all of them. Mrs. Besson paid interest on the loan and reduced it. She owned the premises wherein the corporation carried on business, and the plaintiff admitted that she was financially responsible and abundantly able to pay this debt. There is a distinction between a temporary loan of the surplus funds of a corporation when not otherwise required, and the practice of lending the moneys of the corporation as if the corporation were a bank. And it is to be noted that section 25 of the former Stock Corporation Law (Gen. Laws, chap. 36 ; Laws of 1892, chap. 688), which is now section 29 of the Stock Corporation Law (Consol. Laws, chap. 59; Laws of 1909, chap. 61), prohibits a loan of any moneys to stockholders. Even if such a loan was ultra vires the corporation, it was not otherwise illegal and it was neither malum prohibitum nor malum in se. (See Kent v. Quicksilver Mining Co., 78 N. Y. 159 ; Bissell v. M. S. & N. I. R. R: Cos., 22 id. 258, 269.) But whichever view we may take of the transaction, whether it was legal or ultra vires, I think that the plaintiff cannot prevail in this feature of the case for the reasons that I shall give only later on, inasmuch as they obtain as to other transactions. I attach little importance to the fact that the loan charged on the books to Mrs. Besson was changed afterwards, at 'the instance of Smith, to Mr. Besson, who, apparently, was not financially responsible. The plaintiff does not pretend to say that he was misled by the said change in the books. And Mrs. Besson with the consent of the plaintiff, in lieu of testifying, but over objection as to competency, materiality and relevency, filed at trial her formal acknowledgment that the loan was made to her, that the reductions were made and the interest was paid by her, that the obligation was hers, with the promise to discharge it with interest.

The said Disosway bought building materials from the' corporation. He was a resident of Dobbs Ferry, where this corporation carried on its business. He was reputed to be a man of wealth and of property, interested in several shops and possessed of realty in the county of Westchester. He bought the materials for improvement of his property. He was treated as was any other customer, and charged with the purchases on the books in an account which had amounted to $50,000. There is no proof of any discrimination in his favor in prices, terms or credits. There is no indication that the extension of credit tó him was other than a fair risk of business. At the -time of Smith’s death, Disosway had reduced his debt to less than $7,000. It was not shown that this was uncollectible. Such purchases were voidable, not void. (Twin-Lick Oil Co. v. Marbury, 91 U. S. 587.) It is contended that Smith was answerable for such balance, not only on account of the relationship of Disosway with the corporation, but also because Disosway, being personally indebted to Smith, had assigned his life insurance policy of $5,000 to Smith as security, which was collected by Smith’s executors; and because, in December, 1911, Disosway and his wife conveyed certain realty to Smith’s executors on account of the said indebtedness to Smith. In the first transaction Smith himself had but taken security, and in the second transaction Smith, of course, had no part. I think that there was no breach of Smith’s fiduciary obligation as a director in that he secured security for a personal debt due from one who had an account with or was indebted to the corporation.

At the inception of the corporation in 1897, the salaries of Smith as president, the plaintiff as vice-president and manager, and of Disosway as secretary and treasurer, were made $100, $1,200 and $100 a year respectively. In 1903 Smith’s salary was increased to $3,000, and Disosway’s salary was increased to $1,200. The plaintiff voted against the resolution for such increases, and his contention is that he is entitled to have paid into the treasury of the corporation all moneys drawn by Smith and by Disosway which represent their increased salaries. That contention rests upon two grounds: First, that the resolution of such increases required the vote of Smith and of Disosway, and second, that the salaries in the amount paid were excessive and a fraud upon the corporation. This specification as to the vote is correct, for Smith, the plaintiff and Disosway constituted all of the stockholders and all of the directors of the corporation. But I think thát this action was voidable, not void. (Jacobson v. Brooklyn Lumber Co., 184 N. Y. 152, 162, citing 10 Cyc. 790 ; Barr v. N. Y., L. E. & W. R. R. Co., 125 N. Y. 274, 275 ; Godley v. Crandall & Godley Co., 212 id. 121, 132 ; Carr v. Kimball, 153 App. Div. 839.) The by-laws committed authority over salaries to the directors; the vote of the increase is recorded as taken at a special meeting of stockholders, at which all of the stockholders were present and consequently all of the directors, for they were one and the same. ¡No point is made as to formalities, and I think it is unimportant, inasmuch as all of the directors actually voted on the resolution; in other words, it was not essential in this instance that the directors should hold a separate meeting at that time for that purpose. (See Elyea v. Lehigh Salt Mining Co., 169 N. Y. 33 ; Cook Corp. [6th ed.] § 606, and notes.) And I think that the trial court was right in finding that this salary was proper and that the increase worked no wrong upon the corporation. The original salary of $100 to Smith is no criterion. For the corporation was formed to take over the business of an insolvent and apparently moribund firm. Smith was the. principal owner of the corporation. The venture was practically his venture. He was a merchant in ¡New York city and engaged there as the president of a large corporation. He did not know whether the corporation would fail where the firm had failed. He could not forecast how much of his time and attention would be required by this business. The value of his services as president is not to be measured by his attendance at the office or at the place of business. It is true that he went rarely to Dobbs Ferry, but he kept in constant touch with affairs through bi-weekly visits by Disosway, its secretary, treasurer and bookkeeper. He lent to the corporation his financial strength, he guaranteed its commercial paper, he advised as to its accounts and credits, and it may be inferred that he directed generally its conduct. And this fact stands out: that where the firm of Besson & Oo., with the plaintiff as a partner, had failed, the corporation of Besson & Co., with Smith as its president and in control, succeeded. And when this increase of salary was made the corporation had shown success, and had accumulated a considerable surplus. Disosway was first its secretary and its treasurer, but later on took over the duties of the bookkeeper, who was discharged. He attended at the office daily and did his work. The salary of $1,200 seems fair and just.

The question presented in this case is, not whether a stockholder had such a remedy, ,bnt whether this stockholder had it at the ijime he invoked it. The plaintiff, as we have seen, was a stockholder from the outset until the death of Smith, and for the same period he was vice-president, director and the manager. He devoted his entire time to the business at Dobbs Ferry. The books of the corporation were kept in its office at that place, were open to him, and were looked into frequently by him. They showed the loan to Mrs. Besson in specific terms. The plaintiff received at the close of each year statements of the corporate affairs in detail, that specified the loan, and he admits that he examined the statements and understood them, for he had been a bookkeeper. If we believe that he did not know of the loan to Mrs. Besson before or at the time it was made in 1899, that he did not learn of it from the books wherein it was entered •— and our credulity is taxed when we remember his close association with this close corporation — we must believe that he knew of the loan when he received, read, examined and understood the annual statements wherein it was set forth. In any event the law will impute such knowledge to him. He knew of the increase of salaries in 1903, for he voted against the resolution, and he must have known, or was legally chargeable with knowledge, that these salaries were paid inasmuch as these annual statements contained this information. He knew of the sales to Disosway, because the sales were executed under his direction as manager and were entered regularly upon the books. How, there is not a bit of evidence that at any time he ever demurred, objected or protested against any of these transactions or sought rectification or redress, save that he voted in 1903 against the increased salaries. It might well have been that protest or objection, or the seeking of relief within the corporation, would have been unavailing, but in any event he could have invoked the courts. How can he he heard to say that he was cowed by Smith, when he was independent enough to vote against Smith on the questions of the discharge of John Besson, the discharge of the bookkeeper, the substitution of Disosway for him and the increases of the salary, including that made for Smith himself ?

The doctrine of acquiescence, as said in Lowndes v. Wicks (69 Conn. 15, 30), is “ Well defined as quiescence under such circumstances that assent may be reasonably inferred from it.” (2 Pom. Eq. Juris. [3d ed.] § 965 and note ; Pollitz v. Wabash R. R. Co., 207 N. Y. 113, 129 ; Kent v. Quicksilver Mining Co., supra.) Upon the authorities cited, to which I may add Hoyt v. Latham (143 U. S. 553) and Klein v. Independent Brewing Assn. (231 Ill. 594), I think that the plaintiff must be held to acquiescence as to these said transactions. (See, too, Morawetz Corp., supra, § 262, note 2.)

But, as I have said, there are other transactions as to which this judgment should not be affirmed. Between January 1, 1907, and the time of his death, Smith withdrew moneys from the corporation which at the latter period amounted with interest to $12,614.97, and prior to Smith’s death Disosway had become indebted to the corporation for money received, which, according to the statement of January 1, 1911, amounted to $3,637.47. The court has found without exception that these moneys represent loans to these two persons. These moneys were entered and carried on the corporate books as such loans. These loans were made to these stockholders individually, and it must be presumed that they were for their own advantage. Therefore such use of the funds of the corporation was a breach of duty on the part of Smith (Pollitz v. Wabash R. R. Co., 207 N. Y. 113), and it was malum prohibitum. (Stock Corp. Law [Gen. Laws, chap. 36 ; Laws of 1892, chap. 688], § 25 ; reenacted by Stock Corp. Law [Consol. Laws, chap. 59 ; Laws of 1909, chap. 61], § 29.) Such use if malum prohibitum was impossible of ratification, because ratification is as objectionable to that which is malum prohibitum as was the original offending. (Pom. Eq. Juris. [3d ed.], § 964, note ; Schwab v. Potter Co., 194 N. Y. 409, 419 ; Continental Securities Co. v. Belmont, 206 id. 7, 18.) Having in mind the decision and discussion in Pollitz’s case (supra), one may say that if the defense of acquiescence, rest upon the principle of ratification, then there could be no ratification of an act malum prohibitum, and if it rest upon the principle of estoppel, no new rights have arisen or could have arisen as to these borrowers since such loans were made. So far as laches is concerned, laches rests upon estoppel (Cook Stock & Stockh. [2d ed.], § 731, and authorities cited), and the cause of action is barred, not by laches, but by the Statute of Limitations. (Pollitz v. Wabash R. R. Co., supra, 130.) The Statute of Limitations applicable would be that of 10 years. (Brinckerhoff v. Bostwick, 99 N. Y. 185.) But as Smith remained a director of the corporation up to the time of his-death in 1911 (Gen. Corp. Law [Gen. Laws, chap. 35 ; Laws of 1892, chap. 687]) § 23 ; re-enacted by Gen. Corp. Law [Consol. Laws, chap. 23 ; Laws of 1909, chap. 28], § 28), I think that the statute did not begin to run prior to that time. (Zebley v. F. L. & T. Co., 139 N. Y. 461, 469 ; Ludington v. Thompson, 153 id. 499 ; National Bank of Commerce v. Wade, 84 Fed. Rep. 10.) Whether plaintiff acquiesced at the time these loans were made, or knew of them at the time they were made, we do not know. But it is clear enough that he knew of them, or at least is chargeable with legal knowledge thereof, for a number of years. But, nevertheless, I think that he is not barred from relief. Story in his Equity Jurisprudence (13th ed., § 298) writes: “ In cases where the agreements or other transactions are repudiated on account of their being against public policy, the circumstances that the relief is asked by a party who is particeps criminis is not in equity material. The reason is that the public interest requires that relief should be given, and it is given to the public through the party.”

The learned counsel for the appellant calls to our atténtion that there is no loss to the corporation by the loans to Smith or to Ellen W. Besson, but I think that proof of loss to the corporation was not essential. The stockholder in such an action has the right to insist that the illegal act be undone. (Byrne v. Schuyler Electric Mfg. Co., 65 Conn. 336 ; Schwab v. Potter Co., supra.)

The judgment must be modified so that the plaintiff recover for the corporation the amounts of the loans to Smith and to Disosway, with interest, and consequently the findings that are to the contrary are disapproved and appropriate findings will be made in their stead; and when the judgment is thus modified it will be affirmed, without costs to either party. The parties must submit proposed findings to this court within twenty days.

Bubr, Thomas, Oabb and Bich, JJ., concurred.

Judgment modified in accordance with opinion by Jenks, P. J., and as so modified-affirmed, without costs to either party. Parties must submit proposed findings to this court within twenty days. Order to be settled before the presiding justice. 
      
       See Code Civ. Proc. § 388.—.[Rep.
     