Kimmell v. Greeting ( 1853 )

The opinion of the court was delivered October 28, 1853, by

Lewis, J.

— All the defendants, except John- Alsop, were officers of the company in 1842, when the resolution was passed, directing John Metzgar, one of the managers, to go to Harrisburg, to purchase the stock of the company, then advertised to be sold at that place; and all of them were. officers at the time Metzgar made the purchase at Pittsburgh, in 1843, (the time and place of sale having been changed.) Without any rescission of the resolution, directing the purchase to be made for the benefit of-the company, these individuals (being the president, managers, and treasurer of the company,) thought proper to divide among themselves the stock thus purchased by Metzgar, to the entire exclusion of the stockholders, whose agents they were. It is not necessary to decide, that the officers of a corporation cannot purchase any claim against, or interest in the company, except in trust for the stockholders. That subject will be fully considered in another case now before us. But it is clear that they have no such right, after a resolution has been adopted by themselves, as managers, directing one of their number to purchase for the benefit of the company.

A change in the time and place of sale from that published when the resolution was passed, was no revocation of the authority to purchase for the benefit of the corporators ; and the division among themselves, by the defendants, of the stock purchased by the agent of the company, was an act of bad faith, which was certainly some evidence of a combination to defraud those whose interests they had undertaken to protect and promote. If a traveller is robbed by a highwayman, and the latter is discovered soon afterwards, dividing the spoil among his companions, this is some evidence that they participated in the means by which it was obtained. If the distribution is made, not according to the arbitrary will of the criminal, but 'equally, or according to some rule of distribution agreed upon, this strengthens the evidence of original participation in the act of acquisition. It is not intended to liken the conduct of the plaintiffs in error to persons of the description here referred to, farther than necessary to illustrate the principle. As men are not generally permitted to reap where they do not sow, their participation in the fruits of the enterprise, under the circumstances, was some evidence that they were engaged in it, and the declarations of one of them, while so engaged, were properly admitted.

Thus far we are unanimous; but the judges present at the argument are equally divided in relation to the question raised on the Statute of Limitations. Two are of opinion, that the transfers of the stock on the books, and the use which the defendants made of it in voting at the elections, afforded the plaintiff below the means of discovering the fraud, and that therefore the action was barred, because not brought within six years. The other two judges think that the statute did not begin to run against the plaintiff below, until he actually discovered the fraud. We all incline to the opinion, that there is not sufficient merit in the ease of the plaintiffs in error, to entitle them to a re-argument before a full bench. The judgment is therefore affirmed.