Brown v. Alexander , 1 N.C. App. 160 ( 1968 )

Brock, J.

The defendants assign as error the signing and entry of the order by Judge Beal. This presents for review the legal sufficiency of the application for examination to support the order of examination. Webb v. Gaskins, 255 N.C. 281, 121 S.E. 2d 564.

The plaintiff by his affidavit in support of his application for examination, by the agreed statement of case on appeal, and by the statement of facts in his brief, asserts that this action was instituted for the purpose of securing specific performance of a contract to deliver stock of the corporate defendant; or, in the alternative, to recover damages for breach of the contract.

The plaintiff’s Affidavits AND Application for Adverse Examination of Defendants Alexander Before Filing Complaint states the following in paragraph 2: “. . . the failure and refusal of the defendants to deliver the said shares of stock which have been promised by the individual defendants and the issuance and delivery of which have been authorized by a resolution of the Board of Directors of the corporate defendant ...” Other than indicating in paragraph 4 of the application that the individual defendants own, or have owned, stock of the corporate defendant, there is no allegation of any connection between the individual defendants and the corporate defendant. The application does not disclose with whom the plaintiff contracted for stock of the corporate defendant.

The application filed by the plaintiff requests the examination of the individual defendants, but Judge Beal’s order allows an examination of the individual defendants and of the corporate defendant’s records. Paragraph 1 of Judge Beal’s order allows examination of corporate minutes relating to some employment agreement. An examination of the records of the corporate defendant is not authorized under an application for examination of the individual defendants whose connection with the corporate defendant is described only as stockholders, past or present; nor does it seem that an application stating the cause of action to be for specific performance would authorize an order for examination concerning some employment agreement. Also, paragraph 1 of the order allows examination of corporate minutes relating to transactions of the corporation with respect to said stock. This, also, was not authorized under an application requesting examination of only the individual defendants.

Paragraphs 2, 3, 4, 5, 6 and 7 of the order by their terms allow inquiry into, conduct and negotiations of the defendants, which includes the conduct and negotiations of the corporate defendant. Such an order is not authorized under a request for examination of only the individual defendants.

It may be that the two individual defendants are the sole stockholders and officers of the corporation; but it may also be that they are two minority stockholders with no voice in the operation of the corporate defendant. The application sheds no light.

In any event, it seems that if the plaintiff had a contract for the delivery of stock of the corporate defendant, he would know with whom he contracted and would know when and upon what terms it was to be delivered. His application discloses none of this.

G.S. 1-568.10 does not contemplate the issuance of a. general permit for the plaintiff to embark upon an unrestricted “fishing expedition” through the records and recollections of his adversaries. Kohler v. Construction Co., 271 N.C. 187, 155 S.E. 2d 558.

The order entered by Judge Beal on 18 January 1968 is reversed and this cause is remanded with leave to the plaintiff to file his complaint, or to file a proper application for adverse examination if he wishes, within twenty days after this opinion is certified to the Clerk of Superior Court of Mecklenburg County.

Reversed and remanded.

Mallard, C.J., and Parker, J., concur.