Ontjes v. MacNider , 232 Iowa 562 ( 1942 )

I thoroughly agree with the holding of the majority opinion in division I to the effect that the estate is not liable on the claim for $2,308,153, sought on the theory that McNider was a constructive trustee of stock in the LaSalle Cement Company and Alpha Portland Cement Company. However, I am unable to agree with the holding of the majority opinion in divisions II and IV wherein recovery is allowed by reason of the sale by McNider of 3,742 shares of stock in the Alpha Portland Cement Company to the First National Company, and recovery is allowed in the sum of $27,916.66 for salaries and bonuses paid to McNider.

As to the claim based upon the sale of stock to the First National Company, the burden rests upon the plaintiffs to avoid the limitation of the statute by showing that delay in the discovery of the wrong by the corporation prevented assertion of its claim within the statutory period. It has been repeatedly held that the statute cannot be avoided if the party seeking relief (in this case the corporation) had such knowledge or notice as would lead one of reasonable prudence to make inquiries which would have disclosed the wrong. Van Wechel v. Van Wechel,178 Iowa 491, 496, 159 N.W. 1039; Conklin v. Towne, 204 Iowa 916, 920, 216 N.W. 264; Murphy v. Hahn, 208 Iowa 698, 704, 223 N.W. 756; McGrath v. Dougherty, 224 Iowa 216, 223, 275 N.W. 466; City of Carroll v. Arts, 225 Iowa 487, 489, 280 N.W. 869. I do not think that the statute was successfully avoided. The trial court held that McNider was guilty of no actual fraud. Recovery was allowed upon the theory of constructive fraud only. I am unable to find any wrongful concealment shown by the record. I would hold the claim barred by the statute.

In regard to the payment of salaries and bonuses, the trial court held that such salaries and bonuses, though large, were not excessive in view of the valuable services rendered by McNider. I agree with this finding. While the payment of salaries may have been difficult to learn from the books of the corporation, yet they were shown by such books. The payments were made by the corporation and were known to the corporation, its officers and directors. The corporation is the real party in interest. I am unable to see that the corporation has shown equitable circumstances sufficient to justify the delay in filing the claim in its behalf.