Cook County Brick Co. v. Kaehler , 1899 Ill. App. LEXIS 177 ( 1899 )

Mr. Justice Adams

delivered the opinion of the court.

Appellant’s counsel, in his argument, makes but two objections, namely, that the bill shows no ground for equitable relief, and that the injunction was granted without notice. These, therefore, will only be considered, other objections, if any, being deemed waived.

The objection as to want of notice is untenable because appellant moved in the trial court to dissolve the injunction and made an additional motion to modify the injunction, which last motion prevailed. Appellant having had a hearing, in respect to the injunction, in the trial court, can not be heard to complain here of want of notice. O’Kane v. W. End Dry Goods Store, 72 Ill. App. 297.

By the terms of the lease, it could only be terminated prior to the end of the term created by it, either by the lessee, appellee, becoming ousted or dispossessed of the premises, or some material part thereof, in which case appellant, the lessor, might, at its option, terminate the lease; or by the default of appellee in the performance of any of the covenants of the lease by him to be performed. It is alleged in the bill that he, appellee, has been in the possession of the premises ever since the execution of the lease, and that when notified by appellant of the cancellation of the lease, he was not in default under any of the terms and provisions of the lease. These allegations must, in the present state of the case, be assumed to be true. ISTo cause, therefore, existed for the cancellation of the lease. Appellee was not ousted from any part of the premises, nor was he in default. Under these circumstances he was entitled to dividends on his stock, and appellant had not the right either to withhold his dividends or sell his shares of stock. Assuming the allegations of the bill to be true, which, as before stated, must be done, the sale of the stock was a fraud, and appellant is entitled not only to the par value of the stock, but to all dividends which it had earned. In the original bill it is positively averred that the dividends on his nine shares of stock, declared and payable, exceed $450, and in an amendment to the bill filed in further support of the injunction, at the time when appellant moved for its modification, and before the present appeal was perfected, it is alleged, on information and belief, that appellant has made, since its organization, a net profit of $475,000; that there are 455 shares of stock issued; making the profit on each share $1,044; and that appellant has received on his nine shares only $1,012.50, leaving due him as profits on his shares, 88,375.50. What the shares are worth depends, of course, on the profits of appellant; and we are of opinion that a court of equity has jurisdiction in the premises for the purpose of investigating as to the profits or net earnings of appellant, and thus ascertaining the value, including earnings, of appellee’s shares. If appellant’s net profits were so large as alleged, and its business of the character alleged, its accounts must be numerous and complicated. The holder of income bonds of a railroad company, the interest on the bonds being payable out of the net income of the road, can maintain a bill for an accounting in order to ascertain how much the complainant should receive, as owing for interest earned on the bonds. Barry v. Missouri, etc., Ry. Co., 34 Fed. Rep. 829; Spies v. Chicago & E. I. R. R. Co., 40 Ib. 34.

A shareholder, when a dividend has been declared, as is alleged to have been done in the present case, can maintain a bill in equity for an accounting. 2 Cook on Corporations, Sec. 542.

The order will be affirmed.