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inferior tribunal, a corporation, board, or persons, commanding tlie performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, and section 4197 provides that the writ must not be issued in a case in which there is a plain and adequate remedy in the ordinary course of law. Held, that mandamus to compel an officer of a private corporation to permit the inspection of books, papers, and effects in his possession and control, is the proper form of remedy to enforce the right of a stockholder to inspect the books and records of the corporation, where the officer, having the custody, denies the stockholder access thereto.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Mandamus, § 264.]

On petition for rehearing. Rehearing denied.

For former opinion, see 87 Pac. 337.

agree with their workingmen upon the hours of labor or compensation, it has the same right and power to legislate in respect to private persons.” But that this contention is erroneous must be deemed settled. In Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937, the Supreme Court of the United States declared the general rule to be that the right of persons engaged in private business to make contracts in relation to such business is a part of the liberty of such persons, and is protected by the fourteenth amendment to the Constitution of the United States, and that this right includes the right to contract for labor, except where controlled by the state in the exercise of its police power. So that the three casesIIolden v. Hardy, Atkin v. Kansas, and Lochner v. New York—seem to cover almost every possible feature of labor legislation, except that relating to the employment of women or children, and they determine once for all (1) that with respect to work carried on or aided by any municipal, county, or state government, or on contracts let by them, or in private work of such character as to imperil the health or lives of the workingmen, as for instance, work in mills and smelters for the treatment of ores, and in underground mines, the state may prescribe reasonable rules regulating the hours of labor and the conditions under which such work shall be done; (2) with respect to contracts relating to other classes of private work (except where women or children are employed) the state may not interfere.

In the judgment of this court chapter 50, p. 105, Laws 1905, is a valid legislative enactment, capable of being enforced. Under this view of the case, we are of the opinion that the information states a public offense.

The judgment of the district court is reversed, and the cause is remanded, with direction to vacate the judgment rendered and the order made allowing the demurrer, and to overrule the demurrer to the information,

Reversed and remanded.

SCOTT, J. Plaintiffs in error have filed a petition for rehearing upon the ground that the court did not discuss the case of Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189, 56 N. E. 1033, 48 L. R. A. 732, 78 Am. St. Rep. 707, in the opinion filed. It is urged that that decision is binding on this court as a construction of sections 4194 and 4197, Rev. St. 1899, and that so construed, mandamus was not the proper remedy. That case was decided long subsequent to the adoption of the provisions of the Ohio Code of Civil Procedure by this state, and while such adoption ordinarily bound the courts of this state to the construction which had been theretofore placed upon the provisions of the Code by the Supreme Court of that state, yet the courts of Wyoming are not so bound by subsequent construction, which construction

may be persuasive, though not conclusive. The provisions of those sections were not new in this jurisdiction. Sections 607 and 608 of the Civil Code found in the Comp. Law, Wyo., 1876 are practically identical, and may be deemed to have been re-enacted and continued in force by the enactment in 1886 of sections 4194 and 4197, supra.

In Cincinnati Volksblatt Co. v. Hoffmeister, supra, Hoffmeister, a stockholder, brought suit to enjoin the company from refusing to allow him to inspect the books and records of the corporation, a right which was given him by statute, and to fix a reasonable time for such inspection. Upon objection it was held that the suit was properly brought, and that the remedy was by injunction, and not by mandamus, on the ground that injunction afforded the plaintiff a plain and adequate remedy at law within the meaning of section 6744, Rev. St. Ohio 1906, which section is identical in language with our section 4197, supra. The court says: “The complaint of plaintiff is that he is unlaw. fully prevented from the enjoyment of a right which is incident to his ownership of stock, and his remedy is that the corporation be compelled to desist from such deprivation. This does not call for the performance

BRANTLY, C. J., and MILBURN, J., concur.

(15 Wyo. 97) WYOMING COAL MINING CO. et al. v.

STATE ex rel. KENNEDY. (Supreme Court of Wyoming. Dec. 18, 1906.) 1. STATUTES-STATUTES ADOPTED FROM OTHER


A decision of the Supreme Court of Ohio construing a provision of the Ohio Code of Civil Procedure, handed down subsequent to the adoption of such Code by the state of Wyoming, is not conclusive on the courts of the latter state.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, $ 307.] 2. MANDAMUS-CORPORATIONS-ACTS OF OFFICERS.

Rev. St. 1899, $ 4194, defines mandamus as & writ issued in the name of the state to an

of an act which the law specially enjoins. was the duty of Birkhaeuser, their custodian, It is, on the other hand, an act which may to produce them for his inspection. We are be compelled by injunction in the common aware that the decisions are conflicting as and ordinary exercise of that power. There to whether such duty will be compelled by is, therefore, a plain and adequate remedy mandamus. It is held by some of the courts open to him in the ordinary course of the that to do so would be to permit the use of law, for, within the meaning of the statute, the writ to redress private wrongs. Other an equity proceeding is a proceeding of courts hold that there is no other remedy at that character.” Strictly speaking, the hold- law and that the performance of the duty, ing of that court that it was a case for in- though private in character, will be compeljunctive relief did not amount to a con- led by mandamus. 19 A. & E. Enc. of Law, struction of the statute defining the remedy (2d Ed.) p. 869, and cases there cited. The by mandamus. The court determined that word "corporation" as used in section 4194, there was another and adequate remedy open Rev. St. 1899, we think is a generic term, to the plaintiff, and, that being the case, and includes public, quasi public, and prihe could not resort to mandamus, and in vate corporations. The ordinary and plain effect the decision goes no further. The meaning of the section would seem to instatute, conferring the right to inspect the

clude these different classes and we see no books in that case, says: "And the books

reason for interpolating the words “public, and records of such corporations shall at or quasi public" before the word "corporaall reasonable times be open to the inspec- tion," thus giving it a restricted meaning. tion of every stockholder.” The court pro- The remedy by injunction would, in our ceeds upon the assumption which is one of judgment, be inadequate. The right withlaw that the books are so open to inspection out interference to inspect the books might at all times with the limitation that the

be protected by the writ of injunction in it times shall be reasonable. No aflirmative

proper case, but the refusal to permit any act upon the part of any officer of the com

inspection imports also a refusal to produce pany is required or necessary to the enjoy.

the books of the corporation by the custodian. ment of such right, and the refusal by any

It requires an affirmative act upon the part one to permit the books to be inspected is

of the custodian in order that the right may an interference with such right. They were

be enjoyed, and without which the relator in the control of the company, and the ap

would be powerless. As bearing on the que:plication to inspect was made to the com

tions presented in the case, we cite, without pany and not to the officer charged with

further comment, Angell & Ames on Corporatheir custody, nor was the suit against any

tions, page 710; High, Extraordinary Legal one other than the corporation. In the case

Remedies, section 308; Cook on Stock, before us the application was made to the

Stockholders and Corporations, sections 514, respondent, Birkhaeuser, who was at the

515, 516, 518. time vice president and acting secretary and

Rehearing denied. treasurer for permission to inspect the books, but that he "(Birkhaeuser) as such vice president, acting secretary and treasurer al

POTTER, C. J., and BEARD, J., concur. though then and there and now in the possession and control of all the books, papers, and effects of said company in relation to

(15 Wyo. 149) its business affairs and transactions wholly

LELLAIAN et al. v. MILLS. failed and refused and still fails and refuses (Supreme Court of Wyoming. Dec. 18, 1906.) to permit the relator to inspect the same or

1. PARTNERSHIP-MORTGAGES-EXECUTION BY any of them." They were in his actual (us- ONE PARTNER-VALIDITY. tody and control by the provisions of the Under Rev. St. 1899, 82808, making it by-law, and they were required to be kept

necessary for each member of a partnership to

execute and acknowledge any instrument inopen for inspection during business hours.

tended as a chattel mortgage for the partnerThe duty to keep them open was a duty de- ship, it is a prerequisite to a valid chattel mortvolving upon Birkhaeuser by virtue of his

gage of partnership property that every member official position, he ha ving, as such officer,

of the firm should sign it.

[Ed. Note.-For cases in point, see Cent. Dig. assumed their possession and custody. It

vol. 38, Partnership, $ 223.] was his duty as the actual custodian to

2. ESTOPPEL DEFENSE-PLEADING-BURDEN keep them in the place required by the by- OF PROOF. laws, open and accessible to any stockholder In an action attacking a mortgage executed who desired to inspect them during business

by one partner, the existence of circumstances

such as to operate by way of estoppel to prevent hours. This involved a duty to produce the the assertion of a right to the property as books for that purpose, and in this respect against the mortgagee by the partner who did the case is different from the Ohio Case. not sign the mortgage, or by the creditors, is supra. Injunction is a preventative remedy.

defensive matter to be alleged and proved by the

mortgagee. In the case before us the relator was denied [Ed. Note.--For cases in point, see Cent. Dig. access to the books of the company when it vol. 19, Estoppel, 300.]


Where a motion by plaintiff for leave to amend the petition was made and granted in open court on the hearing of a motion for a new trial, and no objection was made by defendant on the ground of absence of notice of the motion, he could not on appeal complain thereof. 4. SAME.

Where plaintiff moved in open court at the hearing of a motion for a new trial for leave to amend the petition, and the motion after hearing was put in formal shape and filed, defendant could not complain on appeal that the motion was not in writing at the time of the hearing, he not having then objected on such ground.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, $ 1207.] 5. PLEADING-AMENDMENT AFTER JUDGMENT -PETITION.

Rey. St. 1899, § 3588, provides that the court may, after judgment, in furtherance of justice, amend any pleading, by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading to the facts proved. Section 2808 makes it necessary for each member of a firm to execute and acknowledge any instrument intended to operate as a chattel mortgage for the firm. In an action by a trustee in bankruptcy against the bankrupt and one to whom he had given a chattel mortgage, the petition alleged the existence of a partnership between the bankrupt and another, that the property covered by the mortgage was, partnership property, that the other partner had consented to the inclusion of partnership property in the bankrupt estate, and that the mortgage prevented plaintiff from equitably apportioning the property mortgaged toward the satisfaction of debts filed in the bankruptcy proceedings, and it was prayed that the property be declared partnership property, and the mortgage adjudged void. Plaintiff's case was presented on the theory that the estate of the bankrupt, including the partnership property, was wholly inadequate for the satisfaction of the demands of creditors. Held that, after judgment in favor of plaintiff, it was proper to permit an amendment of the complaint by the insertion of an allegation that the "assets in plaintiff's hands were at the commencement of this action, and are at the present time and have been during the period of his trust insufficient to pay all creditors.” 6. PARTNERSHIP – ACTIONS EVIDENCE ADMISSIBILITY.

Where the issue was whether a partnership had existed between defendant and another in December of a certain year, plaintiff having the affirmative of the issue, drafts drawn on the firm during the year, the latest one being dated November 15th of such year, and which drafts were paid, were properly admitted on behalf of plaintiff. 7. BANKRUPTCY-ACTION BY TRUSTEE-EviDENCE-ADMISSIBILITY.

Rev. St. 1899, $ 2508, makes it necessary for each member of a partnership to execute and acknowledge any instrument intended as a chattel mortgage for and on behalf of the partnership. A trustee in bankruptcy sued the bankrupt and his chattel mortgagee, alleging that the property was that of a partnership composed of the bankrupt and another, and that the other had filed with the referee authority to include partnership property in the administration of the estate, and it was prayed that the mortgage be set aside. Defendants claimed that the partnership had been dissolved prior to the mortgage and that the property became that of the mortgagor. Held, that there

was no error in admitting in evidence the written consent of the other partner. 8. APPEAL AND ERROR-NECESSITY OF EXCEPTIONS.

The exclusion of evidence cannot be reviewed on appeal in the absence of an exception.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, $ 1504.) 9. BANKRUPTCY-ACTION BY TRUSTEE-EviDENCE-ADMISSIBILITY.

Rev. St. 1899, § 2808, provides that it shall be necessary for each member of a partnership to execute and acknowledge any instrument intended to operate as a chattel mortgage for the partnership. A trustee in bankruptcy sued the bankrupt and his chattel mortgagee, alleging that the property was that of a partnership composed of the bankrupt and another, and that the other had filed with the referee authority to include partnership property in the administration of the estate, and it was prayed that the mortgage be set aside. Defendants claimed that the partnership had been dissolved prior to the mortgage, and that the property became that of the mortgagor. Held, that there was no error in sustaining an objection to questions propounded by defendant to the referee in bankruptcy, whether the other partner did not, at the time he filed the statement, represent that he was willing that all partnership assets might be subjected to the claims of firm creditors. 10. APPEAL AND ERROR-HARMLESS ERROREVIDENCE-EXCLUSION.

Error could not be predicated on the sustaining of an objection to a question to a witness where it appeared that it was answered before the objection was made, and that the answer was in the record, so that it must have gone to the jury.

[Ed. Note.For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 4140.) 11. SAME-INSTRUCTIONS.

In a suit of equitable cognizance, in which a jury was called to try issues of fact, misdirection of the jury is no ground for reversal, though the cause is reviewable on writ of error, the same as in actions at law, unless such misdirection shows that the conclusion of the trial court was based upon a misconception of the law as applied to the evidence or facts in the case, under the issues.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 4219.] 12. PARTNERSHIP ACTION EVIDENCE SUFFICIENCY.

On an issue as to whether certain property mortgaged by defendant was his own or that of a partnership composed of that of himself and another, evidence held to sustain a finding that it was partnership property.

Error to District Court, Uinta County ; Charles E. Carpenter, Judge.

Action by Stephen A. Mills, as trustee in bankruptcy of the estate of Fred Lellman against Fred Lellman and another. Judgment in favor of plaintiff, and defendants bring error. Affirmed.

J. H. Ryckman and S. T. Corn, for plaintiffs in error. B. M. Ausherman, for defendant in error.

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POTTER, C. J. This is an action brought by Stephen A. Mills as trustee in bankruptcy of the estate of Fred Lellman, a bankrupt, against the said Fred Lellman and one Mary M. Guild (his daughter) to set aside a chattel mortgage given to the latter by Lellman De

cember 14, 1901, covering the furniture and the verdict of the jury, and ordered and deother personal property located in the Daly creed the cancellation of the chattel mortHotel in the town of Diamondville, Wyo. / gage aforesaid. The defendants below comThe petition alleged the appointment and plain of that judgment on error. It appears qualification of the plaintiff as trustee of the from the evidence that in 1899 Lellman and estate of said Lellman, a bankrupt; that the Hackman became partners in business at mortgaged property belonged to a partner- | Hilliard in this state, and subsequently, as ship composed of said Lellman and one James such partners, engaged in the hotel business Hackman, under the firm name of Lellman & at Evanston and Diamondville in this state. Hackman; that at the time of the execution | Hackman took personal charge of the business of the mortgage and during the existence of at Evanston, and Lellman at Diamondville. the partnership the said Lellman and said At the latter place they built a hotel known partnership were insolvent, which fact the as the “Daly Hotel," upon which a mortgage said defendants knew at the time of the ex- was executed by them at or about the time ecution of the mortgage; that Hackman, the that it was built to the Diamondville Coal other member of the partnership, had, in the & Coke Company, and, upon purchasing the course of the administration of said bankrupt furniture for said hotel, a mortgage covering estate, filed with the referee in bankruptcy the same was executed to the Blyth & Fargo consent and authority for the said plaintiff Company of Evanston, from whom, we underas trustee to include in the administration stand, the furniture was originally purchased, of the affairs of said estate the property of which mortgages were in existence as secursaid partnership; and that the chattel mort- | ity for the balance due thereon respectively gage aforesaid was given without considera- at the time Lellman executed the chattel morttion, and with intent to hinder, delay, and gage in question. defraud the creditors of Lellman and the Upon the trial no attempt was made to partnership. By amendment permitted on the show that the mortgage sought to be canceled trial without objection it was further specif- was without consideration. On the contrary, ically alleged that, on the date of the execu- it appeared from the evidence introduced on tion of said chattel mortgage, and for many behalf of the plaintiff that the claim of the years prior thereto, a partnership had existed | mortgagee, presumably the claim intended to between said Lellman and Hackman; that it be secured by the mortgage, had been proven had not been dissolved, and that it existed at and allowed against the bankrupt estate, and, the time of the filing by Lellman of his peti- | together with all other allowed claims, had tion in bankruptcy. By further amendment, been ordered to be paid out of the assets of permitted by the court after judgment to the partnership of Lellman & Hackman, for conform to the proofs, it was alleged "that the reason that, as found by the referee in the assets in plaintiff's hands were at the bankruptcy, the debt had been contracted for Commencement of this action, and are at the the benefit of the partnership. Beyond prool present time, and have been, during the period showing the insolvency of Lellman and the of his trust, insufficient to pay all creditors." | partnership, there is practically no evidence After the overruling of separate demurrers to tending to show actual fraud in the execution the petition, the defendants jointly filed an of the mortgage. Without, perhaps, entirely mnswer denying generally each and every al- abandoning that feature of the case, the plainlegation contained in the petition; and, after tiffs, upon the trial, relied chiefly upon the the first amendment to the petition, they filed alleged fact that the mortgage covered partan amended answer denying the partnership nership property, and that it was invalid for between Lellman and Hackman on the date of any purpose under section 2808, Rev. St. 1899, the execution of the chattel mortgage afore- which requires a chattel mortgage of partsaid, and alleging the dissolution of such nership property to be signed by each mempartnership by mutual agreement, and the ber of the partnership. And, in addition to acts of the parties in the month of January, the showing as to insolvency, the evidence of 1901, and that the property covered by the both parties was chiefly confined to proof upmortgage in question and all other property on the question of the existence of the partof the partnership located at Diamondville nership, and whether the property mortgaged became the individual property of said Lell- was or was not, at the time of the execution man, subject to the prior encumbrances there- of the mortgage, partnership property. The on, and that the property of the partnership chattel mortgage purports to be a mortgage at Evanston became the individual property between the said Lellman and the said Guild, of said Hackman; and that, at the time the and to convey, subject to the conditions theremortgage was executed, said Lellman was in expressed, the personal property therein the owner of all the property described there- described. There is nothing in the mortgage in. A reply was filed denying generally the manifesting an intention to convey merely allegations of the amended answer.

the interest of Lellman as a partner, but the A jury was impaneled in the cause and, property is treated throughout the instrument after hearing the evidence and the instruc- as the individual property of Lellman, who tions of the court, they returned a verdict alone signed and acknowledged the mortgage. for the piaintiff. Thereupon a judgment was Section 2808, aforesaid, provides as follows: entered which recited that the court adopted | "It shall be necessary for each member of a

copartnership to execute and acknowledge a quent to the execution of the mortgage, to mortgage, bond, conveyance, or other instru-satisfy a debt due from the firm; and the ment intended to operate as a chattel mort- court treated the defendant as a purchaser, gage for and on behalf of the copartnership, and, as already indicated by quotations from provided, that a chattel mortgage may be the opinion, the defendant was permitted to given to a copartnership in its copartnership attack the mortgage as void because of its name without enumerating the several mem- improper execution. bers thereof." And section 2810 provides We do not understand that counsel here that a mortgage given to a copartnership shall dispute the correctness of the construction only be released, satisfied, assigned, or trans- | placed upon the statute in that case. Indeed, ferred either by an indorsement upon the orig- without objection, the trial court, in its ininal instrument or by an instrument executed structions to the jury, quoted the material and acknowledged by each member of the clause of section 2808, and stated that if the copartnership

jury should find from the evidence that the Section 2808 was considered and construed partnership of Lellman & Hackman was an by the United States Circuit Court for the existing partnership at the time of the exdistrict of Wyoming in the case of Ridgely ecution of the mortgage, and that the mortv. First National Bank (C. C.) 75 Fed. 808. gage was given upon the partnership propDistrict Judge Hallett, who presided in the erty, and was not executed and acknowltrial of that case, held that, under that sec- edged by each and every member of the parttion, it was necessary in order to make a nership, then, and in that event, the mortvalid chattel mortgage of partnership prop- gage would not be a valid mortgage of the erty that each member of the firm should copartnership, and would not bind the cosign the mortgage. The learned judge said: partnership property. And, at the request of “There can be no valid mortgage of copart- | defendants below, the jury were instructed nership property except by an instrument that if they should find from the evidence which shall be executed by all members of that the partnership had been dissolved prior the copartnership. I do not agree with coun- to the execution of the mortgage, and that sel that an instrument executed by part of the property described in the mortgage therethe members of the copartnership may be a by became the individual property of Lellmortgage of the interest of those members in man, and was his individual property, and the copartnership property. In order to have not partnership property, when the mortgage a mortgage of that character, it would be was executed, and that he had a right then necessary that the instrument on its face to mortgage it, then the verdict should be for should purport to be a mortgage of the inter- the defendants. We are satisfied that those ests of the copartners signing it. A mort- instructions correctly stated the law of this gage which on its face is made to be a mort- state upon the subject. It is evident that the gage of the entire partnership property, and Legislature intended as a prerequisite to a is signed by some of the members of the valid chattel mortgage of partnership proppartnership, but not all, is, in my judgment, erty that every member of the partnership under this statute, a void instrument, of no should sign it, and the language employed force and effect, either of the partnership clearly expresses and carries out that intenproperty, or the interest of the persons sign- tion. ing it in the partnership property.” And it Where, in the absence of statutory regulawas held that such a mortgage, not signed tion, it has been held that one partner may by all of the members of the partnership, execute a valid chattel mortgage upon the differed from a mortgage valid upon its face, property of the partnership to secure a but alleged to have been fraudulently made, nership debt, that rule has been adopted in in respect to attacks upon it by creditors and view of the ordinary relations existing beothers; the following statement being made tween partners and between each of them on that subject: "As to what was said by and the property of the firm, and the power counsel as to the position of a creditor in of each partner in respect to such property attacking a chattel mortgage, to the effect and the firm business. Every partner is that one must have process, and must ap- generally regarded as the general agent of pear in the attitude of a creditor, I think the firm to carry out its objects and transact that applies to the case of a mortgage which its business in the ordinary way. And hence may be recognized as such." In conclud- | it has been held, and that is no doubt the preing the opinion it was said of the mortgage vailing rule in the absence of statute, that there in question which had not been signed each partner, by virtue of the relation of by one of the partners, “I think it was never partnership, and of the community of right a mortgage of the copartnership property, and interest of the partners, has full power and that it did not convey to the plaintiffs and authority to sell, pledge, or otherwise any interest whatever in the copartnership dispose of all personal property belonging to property.” In that case the holders of the the partnership, for any purpose within the mortgage had brought suit to recover the scope of the partnership business, and may, proceeds of sales of certain property describ- therefore, without the concurrence of his coed in the mortgage which had been turned partners, mortgage the partnership property over to the defendant by the firm, subse- to secure the payment of a partnership debt.

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