Landes v. Globe Planter Manufacturing Co. , 73 Ga. 176 ( 1884 )

Jackson, Chief Justice.

The defendant corporation being indebted to the Gate City National Bank in a large sum of money, after trying to pay or secure it in various ways, and failing in all, accepted a proposition from Thomson, who was endorser on their notes to the bank (which proposition is reported at the head of this opinion), to shoulder the debt on the terms therein set forth. Whereupon, Thomson took charge of the property under the said agreement, and discharged the debt by an arrangement with the bank, to look to him individually for its payment.

All the stockholders acquiesced except the complainant,, who filed her bill to enjoin the consummation of the agreement, on the ground that the contract is ultra vires, because Thomson was a stockholder and director at the same time that he was also endorser of the company's paper. It appears that the complainant had not paid up for her stock, her husband, it is alleged in the bill, 'being employed by the company to work it out, and pay for it in that way, and being wrongfully discharged. The husband also joins in the bill, and sets up his rights for debts due him by reason of this employment and discharge.

The bill is sworn to by one of the counsel, to the effect that what he knows of his own knowledge is true, and what he has heard he believes, but he does not swear that he knows of his own knowledge a single fact. The chancellor refused the injunction, and complainants excepted.

1. The chancellor was right to deny the application for the writ of injunction, because the facts alleged in the bill were not verified. The counsel does not allege that he knew a single fact set out in the bill, of his own knowledge. A mere affidavit of belief is not sufficient. The case of Hone & Co. vs. Moody et al., 59 Ga., 731, is directly on the point, and rules this case. The answers do not admit the excuses for non-payment of her share by the wife, nor any indebtedness or wrong to the husband. So that the answers do not verify material facts in the bill, and there are no depositions by anybody, and the sole verification is the belief of counsel.

2. Complainants in equity must do equity. They must come in with clean hands. These complainants, according to the sworn answers, are very unclean. They have not paid for the stock, and yet are the only people interested in the company who complain. They must pay up before equity will listen to them — much more before it will enjoin defendants from paying a just debt to an innocent third party, and stop the only way possible to pay it, except under the sheriff’s hammer, after expensive litigation g,nd costs, perhaps. Therefore, the chancellor was right to refuse the writ on this ground. All who had paid up their stock were happy that the arrangment was made with Thomson; these, the only shareholders who had not paid for their shares, alone complain. Code, §3084; 60 Ga., 222.

3. These principles are ample to decide the only question before us with the chancellor. He could not grant ail injunction on such a verification of the bill, nor could he grant it in aid of a party whose default in paying what he subscribed to the company, as his • share in the venture, contributed to make the debt, the provision to pay which necessitated the arrangement with Thomson.

But we think the stockholders empowered the directors to make the arrangement with Thomson, or anybody else; and as all of them, except this defaulter, are satisfied, it would be anything but equity to defeat the wishes of all the others to gratify her. The action of the stockholders, we think, did not confine the directors to one mode of arranging for this debt, but is broad enough to cover that made with Thomson. That action of the stockholders, and the subsequent action of the directors in agreeing to Thomson’s proposition, will appear in the report at the head of this opinion.

See Mor. on Corp. 240; 56 How., 70; 1 Ga., 171-2.

Judgment affirmed.