[Corporation1] case 1 - 20
1. Louis K. Liggett Co. v. Lee --- US supreme court 1933 --- 288 U.S. 517, 548-65, 53 S.Ct. 481, 490-96, 77 L.Ed. 929, 944-54
Justice Brandeis, dissenting…
1. Fact
The case involved retail business taxes in the Florida being based on the number of stores and not the value or sales of the stores. This statute requires businesses operating in Florida to obtain a license. The filing fees for the license are heavier for chain stores as opposed to stores owned independently but operating in voluntary cooperation with each other. The tax is increased if one or more store in the chain is located in a different county. A further tax of $3 is required for each $1,000 value of stock carried in each retail store. Filling stations engaged exclusively in the sale of petroleum products are excluded.
2. Issue
Whether those provisions of the act that increase the tax if the owner’s stores are located in more than one county are unreasonable and arbitrary.
3. Rule
Chapter 15624 of the Laws of Florida,1931(Ex. Sess.), declares it unlawful for any person, firm, corporation, association, or copartnership, foreign or domestic, to operate any store withinthe statewithout first having obtained a license, designates the officer to whom application shall be made, regulates the procedure for issurance of licenses, and provides for annual renewal.The actrequires the payment of a filing fee, and bysection 5, which is copied in the margin,*fixes the amount of the license fee.A tax greater than that exacted for a single store is fixed for each store in excess of one, but not exceeding fifteen, owned or operated by the same person or corporation.The fee for each store is stepped up in amount as the number constituting the chain reaches certain specified limits.
4. Application
Although the value of this instrumentality in commerce and industry was fully recognized, incorporation for business was commonly denied long after it had been freely granted for religious, educational and charitable purposes.It was denied because of fear. Fear of encroachment upon the liberties and opportunities of the individual. Fear of the subjection of labor to capital. Fear of monopoly. Fear that the absorption of capital by corporations, and their perpetual life, might bring evils similar to those which attended mortmain.In many other states, including the leading ones in some industries, the removal of the limitations upon size was more recent. The removal by the leading industrial States of the limitations upon the size and powers of business corporations appears to have been due, not to their conviction that maintenance of the restrictions was undesirable in itself, but to the conviction that it was futile to insist upon them; because local restriction would be circumvented by foreign incorporation.
5. Conclusion
Increasing taxes when an owner's stores are located in more than one county is unjust and arbitrary.
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(dissenting 내용만 corporation1 교재에 수락되어 있어서 나머지는 search하였습니다.)
제한을 가하게되면 단점이 생김. 사기업이 때때로 주를 장악하기도 한다. 소유와 경영이 분리되지 않고, 일치되어가고 있는 현상이 생긴다. 이를 정부에서 규제해야한다. 한국의 공장이 미국 아리조나주에 있음. 세금 감면이 있기 때문에.
dissenting opinion
미국에서 회사를 설립할때 자본금이 필요한가요?
은행이 corporation인가? 메가 스터디는 , 월마트나 이마트는, 신세계백화점은 corporation인가?
business association 구별 - corporation/ partnership(법무법인, 로펌.. LLP)/ solo practice
partnership
- shareholder(주주 ): 없음/ BoD(board of director) 없음, bylaws 없음. / ownership, management - 분리 X
corporataion
-shareholder : 있음. BoD 있음, bylaws 있음. ownership, management - 분리 O
이케이스 dissenting opinion의 point가 무엇이가? corporation 만들었을때 업종제한 없어짐.
이 사건을 통해 dissenting opinion 이 majority가 됨. 자본의 최소 제한도 없음.
거주 자격도 없음. 외국인도 미국에 회사 설립가능. 국적제한 없으니까 회사세우는것 가능하지만 비자가 있어야 함.
투자이민 비자가 필요. 투자 비지니스 비자가 필요. 그런게 있다면 누구든지 가능.
회사 설립은 쉬워졌다.
corporation 다룰때 : MBCA (Model business company act) + case
2. 711 Kings Highway Corp. v. F.I.M. Marine Repair Serv., Inc. --- Supreme Court of New York 1966 --- 51 Misc.2d 373, 273 N.Y.S.2d 299
VICTOR L. ANFUSO, J
1. Fact
The verified complaint alleges that on or about April 20, 1965 the plaintiff, owner of premises known as 711-715 Kings Highway in the County of Kings, City of New York, entered into a written lease agreement with defendant whereby plaintiff leased the aforesaid premises to defendant for a period of 15 years commencing July 1, 1966. Under the terms of the lease the demised premises were to be used as a motion picture theater that the purposes for which the defendant corporation was formed were restricted generally to marine activities including marine repairs and the building and equipment of boats and vessels, as set forth in the certificate of incorporation.
2. Issue
Is a lease against the original purpose(marin activities) of the company invalid?
3. Rule
Section 203 of the New York Business Corporation Law
That no act of a corporation and no transfer of property to or by a corporation, otherwise lawful, shall be invalid by reason of the fact that the corporation was without capacity or power to do such act or engage in such transfer except that such lack of capacity or power may be asserted (1) in an action brought by a shareholder to enjoin a corporate act or (2) in an action by or in the right of a corporation against an incumbent or former officer or director of the corporation or (3) in an action or special proceeding brought by the Attorney-General.
Albany L. Rev. 202 "The New York Business Corporation Law", p. 204.
-Notwithstanding the fact that this section is entitled "Defense of ultra vires" it seems that except in the three stated situations set forth in the section, which are not applicable to the instant case, ultra vires may not be invoked as a sword in support of a cause of action any more than it can be utilized as a defense.
4. Application
It is undisputed that the present case does not fall within the stated exceptions contained in section 203. It is accordingly clear from the language of the statutory provision hereinabove referred to that there is no substance to plaintiff's argument, in opposition to the instant motion, which is predicated on a want of corporate power to do an act or enter into an agreement beyond the express or implied powers of the corporation conferred by the corporate charter. Neither is there merit to the plaintiff's contention that section 203 applies only where ultra vires is raised as a defense. Finally plaintiff's contention that the ultra vires doctrine still applies fully to executory contracts must be rejected. By virtue of section 203 the doctrine may not be invoked even though the contract which is claimed to be ultra vires is executory, as in the instant case. Accordingly the defendant's motion for judgment dismissing the complaint for insufficiency is granted.
5. Conclusion
The lease on this case is valid.
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원고가 File한 이유? 피고 corporation - marin business 목적. motion picture 계약 무효 주장(원고)
원고는 ultra vires doctorin근거로 피고와의 계약이 무효라고 주장. - case 에서 나온 common law
ultra vires doctorin : 회사의 파워를 넘어서는 행위는 무효
New York business law sec. 203과의 관계는?
203은 회사의 목적과 관계없이 무효아니지만 예외가 있다고해서 정면충돌하지는 않음.
이 회사(marin business한다고 했으면서 영화사업하는)의 주주가 이계약이 무효다라고 주장하는 건 된다 왜?
주주의 지위를 인정하고 있음.
B. 회사 경영진과 간부에 의한 소제기 가능. (회사의 전횡을 막을 수 있기때문)
피고회사 사람들은 소제기한 것이 없음.
Section203 본문은 다른 비지니스하더라도 invalid하지 않다라고해서 충돌하는 상황.
시험에서 : 만약 주주에 의해 소제기되면 invalid될 수 있음.
Lease agreement 있는경우 계약을 invalid하게 되는 요소는 계약당사자가 무능력할경우임
Marin business관련된것만 계약가능. 영화산업은 안됨. 권한이 없거나 전혀 할 수 없는 종류의 계약을 해도 무효임.
피고측 회사는 아무말안함. 원고측이 이러한 계약은 ultra vires doctorin(회사법이론)으로 인해 안된다고 이야기함.
Lease agreement 가 계약법으로는 무효가 안됨. 무효로 되기 위해 회사법을 적용. 회사법은 계약법의 특수한 형태임.
ultra vires doctorin법 거의 쇠퇴함.
계약맺은 당사자의 능력이 있는지는 일반계약이론으로 가능.
ultra vires doctorin은 계약을 누가 맺었던지 상관없이 회사 목적을 벗어나면 무효.
사업자 등록증이 나오는대로 해야한다는 것이 ultra vires
(사업 확장제한이 있음. 독점을 금하기 위해 무한확장은 안됨. 미국)
주주총회의 동의, 경영진의 결정 필요. 아무도 소를 제기하지 않은걸 보면 회사에서 승인받은것으로 볼 수 있음.
defense of ultra vires : 원고의 주장에는 장점이 없어 받아들일 수 없다.
Neither is there merit to the plaintiff’s contention that section 203 applies only where ultra vires is raised as a defense.
ultra vires가 exception3가지되는 곳에만 203조 적용. 하지만 원고가 말한 defense되는 곳에만 적용되는건 아니다.
executory contracts(이행할게 많이 남은 계약) - ultra vires doctrine 적용(일반적)
계약의 의무를 다 이행해버린 후에는 ultra vires doctrine 적용X
exception3가지 허용하는 것은 ultra vires 허용하는 것이다.
이 case 본문은 ultra vires인정하지 않은것임.
3. Theodora Holding Corp. v. Henderson --- Court of Chancery of Delaware, 1969 --- 257 A.2d 398
MARVEL, Vice Chancellor:
1. Fact
Plaintiff, formed in 1967 by Girard B. Henderson's former wife, holds 11,000 shares of Alexander Dawson, Inc.'s common stock. Suing for an accounting of losses and improper gains by individual defendants from contested transactions.Aiming for a liquidating receiver for Alexander Dawson, Inc., citing alleged wrongs threatening the corporation.The $528,000 gift to the Alexander Dawson Foundation is under scrutiny for its impact and validity.Defendant Girard B. Henderson, with majority control, faces accusations of mismanagement and self-enrichment.
2. Issue
Was the $528,000 gift of shares to the Alexander Dawson Foundation valid under Delaware law, considering the corporation's financial status and purpose?
3. Rule
Title 8 Del.C. § 122 : "Every corporation created under this chapter shall have power to —
(9) Make donations for the public welfare or for charitable, scientific or educational purposes, and in time of war or other national emergency in aid thereof."
In A. P. Smith Mfg. Co. v. Barlow, 13 N.J. 145, 98 A.2d 681, 39 A.L.R.2d 1179,
the increase of taxes on individual income, coupled with steadily increasing philanthropic needs, necessitate corporate giving for educational needs even were there no statute permitting such gifts, and this was held to be the case apart from the question of the reserved power of the state to amend corporate charters.
4. Application
The $528,000 gift, within 5% of the corporation's income, reduced shareholders' immediate income loss by less than $80,000. It also boosted the corporation's net worth by $130,000, benefiting all shareholders including the plaintiff. The gift aligns with the corporation's purpose and serves the public interest, justifying its value and contribution.
The $528,000 gift to the Alexander Dawson Foundation was reasonable and valid under Delaware law.It benefitted shareholders, aligned with the corporation's purpose, and served public interest.
Thus, plaintiff's claim regarding the gift's validity lacks merit, supporting the legality and beneficial nature of the donation.
5. Conclusion
The $528,000 gift of shares to the Alexander Dawson Foundation was valid.
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Fact : 회사의 대주주가 자신의 투표권을 행사해서 이사회를 줄이고, 이사회 컨트롤해서 기부하게했는데 기부한 회사가 자신이 세운 회사임. 원고는 40500중 11000을 소유한 holder이다. 원고가 소 제기한 이유는?
기부로 인한 손실을 계산해 달라 / 기부한 것을 무효로 못하게 됨. (결론)
Holding company ? 지주회사는 주식을 소유하는 회사.
일종의 주주. 회사를 설립한 주주
원고 : Theodora holding corp.
피고: Alexander, Henderson, ..
회사(BoD)가 있고, 주주(holding corp. )가 있음.
우선주preferred stock는 voting right이 없어서 인기없는 종목임.
우선배당하는 이점은 있음. 자금을 확보하려고 발행함.
우선주는 가격이 떨어져있음.
BoD도 경영을 control하는데 이 멤버는 누가뽑나?
등기이사는 주주총회 승인받아야하는데, 등기부상에 등재되어 있는 이사가 등기이사.
등기이사를 상대로 소송 .개인이 추가 다 책임져야함.
BoD의 최고 Captain은 CEO - officer임 / CEO도 BOD director 아래 employee.
CEO가 director를 겸하는 경우가 많음. 경영진은 대 주주인경우가 많음.
5~7%로 컨트롤 함. officer는 BOD에서 임용 및 해고.
우리나라 이사 와 BoD이사는 다름. 우리나라의 등기이사가 미국의 BoD이사임.
BoD 멤버는 경영진 /officer는 경영진 아님. 권한 받았는지 확인해야. agent.
BoD 회사의 agent / officer는 회사와 BoD의 agent.
BoD멤버의 숫자 조절하는 것은 중요한 안건임.
주식발행과 관련된것(신주발행등,,), 경영진에 관한 사항, M&A- 주주총회에서 결정(중요한 사항이라)
회사의 정관=Bylaw 에 나옴.
기부한 것이 손해를 끼치나? 회사 이미지 좋아져서 추후 매출에도 좋을텐데
기부금액은 2.75%미만이다. 뉴저지 case에 근거해서. 여기는 Delaware 주.
대주주가 voting right이용해서 말잘듣는 이사들 남겨두고 대주주의 회사에
기부하게한 것을 주주가 invalid하다고 주장할 수 있는가?
대주주가 잘못한 것에 대해 손해배상은 개인이 책임져야.
주주, officer, 이사가 소송을 제기할 수 있다는 것을 알고 있어야.
소액주주소송 가능. 주주에게 돌아오는 배당을 알아야. 배당은 회사이 매출 - 지출-각종세금=순이익에서 배당
순이익 자체를 다 배당하면 어떤 문제가 생김? 투자자금 필요할때 사용할 수 없음. 순이익 중 일부만 배당.
common stock :보통주: voting right있음 /preferred stock : 우선주 : voting right없음.
internal revenue code참조한 이유는? internal revenue code 와 federal tax law와의 관계는?
기부를 자신의 주만 하는 것이 아니라 타주에도 하기 때문에
연방세법 참조. (5프로미만)
4. Frick v. Howard --- Supreme Court of Wisconsin 1964 --- 23 Wis.2d 86, 126 N.W.2d 619. BEILFUSS, J.
1. Fact
Preston organized and promoted Pan American Motel, Inc., then entered a land purchase contract on January 24, 1958, for $240,000 with terms including a $5,000 down payment and a $170,000 mortgage. He borrowed the down payment from Marohl, formed the corporation on April 1, 1958, and was its sole stockholder until September 3, 1958. After obtaining land title on August 29, 1958, he used $61,000 from the corporation's $65,000 and a $170,000 mortgage to pay for the land. Three days later, on September 1, 1958, the corporation offered $350,000 for the land, paying him $70,000, canceling his $35,000 debt, issuing 35 shares, assuming the $170,000 mortgage, and providing a $110,000 note and mortgage. Preston, the dominant figure, signed the offer as the seller, with Frank J. Mack for the corporation. Despite transparency, the court found Preston guilty of defrauding the corporation, emphasizing his ongoing fiduciary duties.
2. Issue
Whether a purchaser of a promissory note from a transaction where a promoter breaches fiduciary duty by acting as both seller and buyer can be protected as a bona fide holder if he knew the price gap between the original note and the nonnegotiable replacement note was more than half.
3. Rule
1 Fletcher, Cyc. Corp. (perm. ed.), pp. 730-733, secs. 192, 193. : "As a result of the fiduciary relation or relation of trust and confidence sustained by a promoter, an unfair advantage taken or secret profit gained thereby is a fraud."
13 Am. Jur., Corporations, p. 257, sec. 118 : "CONDITIONS REQUISITE TO VALID SALE.—A promoter cannot act as both seller and buyer. Hence, where he seeks to sell property to the corporation, he must, if he wishes to retain his profit, provide the corporation with an independent board of directors in no wise under his control and make a full disclosure to the corporation through them, or make a full disclosure of all material facts to each original subscriber for stock in the corporation, or procure a ratification of the sale, after disclosure of its circumstances, by the completely established corporation."
Title of Property -"(2) The receiver or assignee may avoid any transfer by the debtor of his property which any creditor might have avoided and may recover the property so transferred or its value from the person to whom it was transferred unless he was a bona fide holder for value prior to the filing of the petition or assignment hereunder."
4. Application
It is clear that at the time of the sale of the land to the corporation, and the execution of th note and morgage, that the corporation had no independent board of directors. This was not an agreement between an independent buyer and seller dealing at arm’s length. For Preston to obtain a profit of $110,000 for himself under the circumstances herein is unconscionable and a violation of his fiduciary obligagion and as such a fraud upon the corporation. The plaintiff, Frick, received an assignment of a morgage which upon its face provided it was secured by a note described in the morgage. The morgage provided it was secured by a note of even date. The note that he did receive was not of even date and was by terms upon its face nonnegotiable He paid $72,500 for a note of $145,000. He was not a bona fide for value of the note which the mortgage secured.
5. Conclusion
By the Court.—Judgment reversed, with directions to dismiss the complaint.
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24만불에 사서 35만불에 팔고 어음발행.
11만불 어음발행. 7만 2천 5백불에 팜(어음할인, 어음깡). 현금이 들어옴.
이러한 행위를 한단어로? fraud
pierce the corporate veil? -> 회사는 망해도 사장은 이익보는 걸 방지함. 사장개인이 책임짐.
채무자가 채권자에게 약속한 것이 promissory note , 저당설정 - mortgage
Frick 은 채권자인데 회사에서 돈을 안줘서 경매함. 경매하려고 하니
회사의 receiver가 안된다고 항변하는 것임.
11만불짜리 어음발행이 무효면 이걸사도 무효지만
선의의 제3자는 보호받음. 이 사건에서 Frick은 선의의 제3자가 아님.
매매계약에서 consideration있어야.
Frick 은 무효인 어음을 가지고 있음. 회사에 청구 못함. 프레스톤 개인에게 청구가능.
Preston은 회사의 이름으로 발행했다고 항변.
negotiable : 양도할 수 있는/ nonnegotiable : 양도(유통)될 수 없는.
저렴하고, nonnegotiable인걸 알고 샀기때문에 선의의 제 3자로 보호받을 수 없다.
무효인 어음 사서 Frick 은 mortgage 주장할 수 없다.
5. Stanley J. How & Assoc., Inc. v. Boss --- US District Court Southern District of Iowa 1963 --- 222 F.Supp. 936
HANSON, District Judge.
1. Fact
The plaintiff claims that on or about April 20, 1961, the plaintiff and defendant entered into a contract for the performance of architectural services by the plaintiff for the defendant; that the plaintiff performed said contract and prepared detailed plans and specifications which were completed on or about October 20, 1961, for a motor hotel and restaurant at 66th and France Streets, Edina, Minnesota; that the estimated cost of the said motor hotel and restaurant was $850,000.00 and that a firm bid from a general contractor for construction of said project was received in the sum of $850,000.00; that thereafter, and for reasons unknown to the plaintiff the defendant proceeded no further with the project.
2. Issue
Is Mr. Boss, who contracted as the promoter, personally liable for the company?
3. Rule
*In Bass v. Ring, 215 Minn. 11, 9 N.W.2d 234, the court said words are always to be given the meaning they have in common use unless there are very strong reasons to the contrary
*O'Rorke v. Geary, 207 A. 240, 56 A. 541, The payments were to be made monthly and work was to be done before it was possible for the corporation to make the payments. The court held the promoter personally liable.
*Marty v. Champlin Refining Co., 240 Iowa 325, 36 N.W.2d 360; Pazawich v. Johnson, 241 Iowa 10, 39 N.W.2d 590; C. F. Huntsman v. Eldon Miller, Inc., 251 Iowa 478, 101 N.W.2d 531. -The writing must be strictly construed against the party who drafted the writing in question.
4. Application
The contract, signed by "Edwin A. Boss, agent for a Minnesota corporation to be formed who will be the obligor," creates ambiguity regarding present liability. The words "who will be" imply future action, leaving uncertainty about the current obligor. As the defendant wrote the ambiguous terms, they should favor the plaintiff's interpretation. This means Mr. Boss, as a present obligor, is likely liable. Even if the corporation adopts the contract, the promoter's liability remains unless there is a novation or agreement otherwise. The defendant, a key promoter, would still be responsible, especially if pivotal in abandoning the project.
5. Conclusion
Mr. Boss is liable for the performance of architectural services as the present obligor under the contract.
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promoter신분으로 회사를 위해 계약한 후 회사 설립함. 그 이후 원고가 회사에게 책임을 묻지 않고 왜 promoter에게 책임을 묻는가?
원고는 회사에게 소송제기하고 싶으나 회사의 재무상태가 좋지 않으니 개인에게 소송을 제기함 유추가능.
사장으로서 책임이 있다고 해도 개인재산으로 책임지지 않음. promoter로 개인 책임지면 개인 재산으로 책임을 짐. 회사의 agent는 업무상 자신의 책임을 회사가 진다. 계약 당시 회사가 없었다.
양당사자의 intent가 중요함. 계약서에 clear language가 없음.
회사 설립안되면 promoter책임임. 계약서에 분명 회사책임이라고 쓰고 회사설립안하면 문제는 좀 달라짐. 현재의 누가 obligor냐?
아직 존재하지 않는 회사를 위해 싸인한 자가 개인적으로 책임진다.
회사설립할 의무가 promoter에게 있고 이를 따랐다면 promoter가 회사 설립되었으면 회사에게 책임 묻는다.
6. Quaker Hill, Inc. v. Parr --- Supreme Court of Colorado, 1961 --- 148 Colo. 45, 364 P.2d 1056
DOYLE, Justice.
1. Fact
Quaker Hill, a New York corporation, sold nursery stock to Denver Memorial Nursery, Inc. on May 19, 1958. However, Denver Memorial Nursery, Inc. was not yet formed at the time. Instead, another corporation named Denver Memorial Gardens, Inc. had been formed earlier in 1958. Parr and Presba, involved in Denver Memorial Gardens, Inc., decided to create Denver Memorial Nursery, Inc. and signed an order for it on May 14, 1958. This corporation was never formed, and later a new corporation, Mountain View Nurseries, Inc., was created on May 27, 1958. Quaker Hill sought personal liability from the defendants due to the unfulfilled corporation and the use of a different name. The trial court found that defendants did not represent themselves as agents of "Denver Memorial Nurseries, Inc." as it did not exist at the time.
2. Issue
The issue is whether personal liability can be imposed if the defendants were not obligated to establish the corporation or named as obligors on the note or promisees in the contract.
3. Rule
41 A.L.R. 2d 477 : The annotation recognizes the noted exception that personal liability does not attach where the contracting party is shown to be looking solely to the corporation for payment and not to the promoters or officers.
4. Application
The general principle which plaintiff urges as applicable here is that promoters are personally liable on their contracts, though made on behalf of a corporation to be formed.A well recognized exception to this general rule, however, is that if the contract is made on behalf of the corporation and the other party agrees to look to the corporation and not to the promoters for payment, the promoters incur no personal liability. In the present case, according to the trial court's findings, the plaintiff, acting through its agent, was well aware of the fact that the corporation was not formed and nevertheless urged that the contract be made in the name of the proposed corporation. There is but little evidence indicating intent on the part of the plaintiff to look to the defendants for performance or payment.The entire transaction contemplated the corporation as the contracting party. Personal liability does not arise under such circumstances.
5. Conclusion
In this case, promoters are not personally liable on their contracts, though made on behalf of a corporation to be formed. It is affirmed.
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기존회사는 이름이 바뀌었나?
당사자의 의도가 계약서나 note등을 바탕으로 회사당사자와 계약을 이어간걸로 봄.
promoter에서 payment를 요구하겠다?회사가 책임진다는 fact가 많다. 어디에서?
계약당사자가 회사에게 payment 요구하겠다는 계약서의 합의가 있으면.
note 회사와 개인이름 나오는점등이 고려사항이 될 수도 있음.
계약을 확실히 회사책임으로 한 다음 회사 설립안하면 사기가 될 수도 있음.
기망의사 없이 자금사정 없다고 하면 사기는 안됨 (입증의 문제)
promoter책임인지 여부는 양당사자의 intent가 중요. 계약의 language에서 찾음. 해석은 여러가지 fact 바탕으로 찾음.
7. McArthur v. Times Printing Co. --- Supreme Court of Minnesota, 1892 --- 48 Minn. 319, 51 N.W. 216
MITCHELL, J.
1. Fact
About October 1, 1889, the defendant contracted with plaintiff for his services as advertising solicitor for one year; that in April, 1890, it discharged him, in violation of the contract. After October 1st the date at which it was expected the company would be organized, the corporation was not organized until October 16th, but that the publication of the paper was commenced by the promoters October 1st, at which date plaintiff, in pursuance of his arrangement with Nimocks, entered upon the discharge of his duties as advertising solicitor for the paper; that after the organization of the company he continued in its employment in the same capacity until discharged, the following April. Defendant's board of directors never took any formal action with reference to the contract made in its behalf by Nimocks, retained plaintiff in the employment of the company without any other or new contract as to his services
2. Issue
The issue is whether a contract made by a promoter, without adoption or ratification, could be held accountable to the corporation after its establishment.
3. Rule
*Abbott v. Hapgood, 150 Mass. 248, 22 N. E. Rep. 907; Beach, Corp. § 198. This- seems to be more a question of name than of substance, that is, whether the liability of the corporation, in such cases, is to be placed on the grounds of its adoption of the contract of its promoters, or upon some other ground, such as equitable estoppel.
*Battelle v. Pavement Co., 37 Minn. 89, 33 N. W. Rep. 327. See, also, Mor. Corp. § 548. - That it is not requisite that such adoption or acceptance be express, but it may be inferred from acts or acquiescence on part of the corporation, or its authorized agents, as any similar original contract might be shown.
*In re Empress Eng. Co., 16 Ch. Div. 128; Melhado v. Railway Co., L. R. 9 C. P. 505; Kelner v. Baxter, L. R. 2 C. P. 185- In law, be a ratification of a contract which could not have been made binding on the ratifier at the time it was made, because the ratifier was not then in existence.
4. Application
This court, in accordance with what we deem sound reason, as well as the weight of authority, has held that, while a corporation is not bound by engagements made on its behalf by its promoters before its organization, it may, after its organization, make such engagements its own contracts. And this it may do precisely as it might make similar original contracts; formal action of its board of directors being necessary only where it would be necessary in the case of a similar original contract. That the contract in this case was of that kind is very clear; and the acts and acquiescence of the corporate officers, after the organization of the company, fully justified the jury in finding that it had adopted it as its own.The defendant, however, claims that the contract was void under the statute of frauds. What is called “adoption,” in such cases, is, in legal effect, the making of a contract of the date of the adoption, and not as of some former date. The contract in this case was, therefore, not within the statute of frauds.
5. Conclusion
Order affirmed. ( The contract made by the promoter was deemed valid and accountable to the corporation after its establishment, as the corporation's actions and acquiescence indicated adoption of the contract as its own.)
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And this it may do precisely as it(= corporation) might make similar original contracts; formal action of its board of directors being necessary only where it would be necessary in the case of a similar original contract.
a similar original contract? 기존과 조건과 비슷하게 대우하는것. - adoption.
substance의 문제. 이름이 adoption이라고 본질적으로 다르면 결론이 다름.
여기서는 promoter의 책임은 언급 안됨. promoter에게 책임을 묻지 않았기 때문에.
statutes of Frauds 사기 방지법. 계약 맺을 때 반드시 문서로. 문서안되면 이행강제X.
Marriage
Y (over 1year 1년이상 걸리는 계약/ 1년 미만은 계약서 없어도 되고 employee에게 불리)
L 부동산 계약.
E 유언집행자. (executer of will)
Goods 상품 매매계약.
S 제 3자를 위한 보조계약.
McArthur와 Nimocks 계약당시 문서 없었다.
9월12일 계약조건에 따르면 1년이내에 이행되어질 수 없기때문에(=1년이상 걸린다) statutes of Frauds 로 무효다. adoption으로 새로운 계약만드는 것으로 간주. ratification은 안된다. 소급효 인정 안되어서 1년 안되는 계약. statutes of Fraudes 안됨.
만약 3년이상 일하다가 해고되면 문서 있어야. 주장은 void라고 했지만 unenforceable의미임.
8. Robertson v. Levy --- Court of Appeals, District of Columbia 1964 --- 197 A.2d 443
HOOD, Chief Judge.
1. Fact
On December 22, 1961, Martin G. Roberson and Engene M. Levy agreed that Levy would establish Penn Ave. Record Shack, Inc. to buy Robertson’s business. Levy submitted incorporation papers on December 27, 1961, but no certificate was issued then. A lease assignment was made on December 31, 1961. Despite rejection on January2, 1962, Levy began operaring as Penn Ave. Record Shack, Inc. Rebertson sold assets to the “corporation” on January 8, 1962, with a note signed by Levy as President. The certificate was issued on January 17m 1962. One payment was made on the note, but the exact date is unclear but it was made after the certificate of incorporation was issued. Penn Ave. Record Shack, Inc. ceased business in June 1962 and has no assets. Robertson sued Levy for the balance due on the note as well as for additional expenses incurred in settling the leas arrangement with the original lessor.
2. Issue
Whether the president of an "association" which filed its articles of incorporation, which were first rejected but later accepted, can be held personally liable on an obligation entered into by the "association" before the certificate of incorporation has been issued, or whether the creditor is "estopped" from denying the existence of the "corporation" because, after the certificate of incorporation was issued, he accepted the first installment payment on the note.
3. Rule
"§ 29-921c. Effect of issuance of incorporation.: "Upon the issuance of the certificate of incorporation, the corporate existence shall begin, and such certificate of incorporation shall be conclusive evidence that all conditions precedent required to be performed by the incorporators have been complied with and that the corporation has been incorporated under this chapter, except as against the District of Columbia in a proceeding to cancel or revoke the certificate of incorporation."
"§ 29-950. Unauthorized assumption of corporate powers - "All persons who assume to act as a corporation without authority so to do shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof."
Comment to section 50 of the Model Act : "Since it is unlikely that any steps short of securing a certificate of incorporation would be held to constitute apparent compliance, the possibility that a de facto corporation could exist under such a provision is remote."
4. Application
Levy is personally liable for acting as a corporation without authority until Januar 17th. Robertson cannot deny the corporation’s exisence since he accepted payments after the certificate was issued. The court acknowledges that Washington D.C., under MBCA §50, recognises a corporation as legitimate only upon issuance of the certificate. Thus, the valid incorporation date was January 17, 1962. Additionally, the court stops Robertson from denying the corporation’s existence as he received notice of incorporation. However, Levy remains responsibe for actions before incorporation, such as the initial agreement and lease contract on January 8, 1962, under MBCA §139, which holds those who acts as a corporation without authority liable for incurred debts. Therefore, Levy is held liable for the debts incurred due to his unauthorized corporate actions.
The judgment appealed from is reversed with instructions to enter judgment against the appellee on the note and for damages proved to have been incurred by appellant for breach of the lease.
5. Conclusion
Reversed with instructions.
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50조와 139조.
promter의 책임에 대해 이 판결에서 판사의 결정은 139조 적용해서 회사가 설립되지 전이면 without authority라 개인이 책임진다.
1961년 11월 22일 계약맺음
1961년 12월 27일 article제출 (큰 의미 없음)
1961년 12월 31일 - the lease agreement
1962년 1월 2일 - 비지니스 시작
1962 1월 8일 발행한 note
1962 1월 17일 certificate
1962년 1월 2일부터 1월 17일까지 회사 이름으로 계약맺었다면 회사책임?
만약 Robertson v. Levy 계약을 1월 8일 맺었다면 회사책임.
Robertson이 1월 8일 회사로 처분함. 어음받음. 분할납부..
한번 지급있고 나머지는 못받음.
De facto를 인정하는 주라면 회사 책임임 - 회사 이름으로 계약 맺었으니까.
De facto를 인정하는 주라도 회사 설립전에 계약 이뤄짐. 이전의 케이스들
이 사건은 1월8일 계약 이뤄진 경우.
De facto De jure estoppel
9. Cantor v. Sunshine Greenery, Inc. --- Superior Court of New Jersey, 1979 --- 165 N.J.Super. 411, 398 A.2d 571
The opinion of the court was delivered by LARNER, J.A.D.
1. Fact
The company, named "Chateau de Ville, Inc.," was signed for incorporation by Brunetti and Sharyn N. Sansoni. The certificate, along with the filing fee, was mailed to the Secretary of State on December 16, 1974. However, it was not officially filed until December 18, 1974, for reasons unexplained. This delay occurred just two days after the lease was executed. This timing raised questions about the company's legal status during the lease execution period. Sharyn N. Sansoni, a principal in the lease, signed as an incorporator, further complicating matters. The trial court found that the company was not a legal entity at the time of the lease execution.
2. Issue
whether there was a de facto corporation in existence at the time of the execution of the lease
3. Rule
Vanneman v. Young, 52 N.J.L. 403 (E. & A. 1890) - Plaintiffs in effect are estopped from attacking the legal existence of the corporation collaterally because of the nonfiling in order to impose liability on the individual when they have admittedly contracted with a corporate entity which had de facto status.
N.J.S.A. 14A:2-6 and Commissioners' Comment thereunder - The mere fact that there were no formal meetings or resolutions or issuance of stock is not determinative of the legal or de facto existence of the corporate entity, particularly under the simplified New Jersey Business Corporation Act of 1969, which eliminates the necessity of a meeting of incorporators.
4. Application
There is ample evidence of the fact that it was a de facto corporation in that there was a bona fide attempt to organize the corporation some time before the consummation of the contract and there was an actual exercise of the corporate powers by the negotiations with plaintiffs and the execution of the contract involved in this litigation. When this is considered in the light of the concession that plaintiffs knew that they were dealing with that corporate entity and not with Brunetti individually, it becomes evident that the de facto status of the corporation suffices to absolve Brunetti from individual liability. The act of executing the certificate of incorporation, the bona fide effort to file it and the dealings with plaintiffs in the name of that corporation fully satisfy the requisite proof of the existence of a de facto corporation. Since plaintiffs looked to the corporation for liability on the lease, and since we find that Sunshine Greenery, Inc. had a de facto existence, there can be no personal liability of Brunetti on the theory that he was a "promoter."
5. Conclusion
Reversed and remanded.( There was a de facto corporation in existence at the time of the execution of the lease and The corporation is liable for breach of contract.)
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회사가 설립되기전 계약체결 lease agreement를 promoter로서 함.
계약체결시 회사가 책임진다는 명시 있으면 회사책임.
1974년 12월 16일 Lease agreement 계약함. -de facto corporation
1974년 12월 18일 certificate ( 그전에 file 했는데 )
1974년 12월 21일 이미 회사 설립됨. de facto
이사실만 가지고 promoter책임인지 회사책임인지 알수 없음.
계약당시 회사책임으로 된다는 합의가 있어야만 회사책임이 됨.
회사책임인줄알았다는 것을 확신했다는것이 충분한가.
회사가 책임진다는것이 어디있는가? 양당사자의 같은 생각이 필요함.
둘다 알았다는 내용이 나옴.
뉴저지 주는 de facto 인정되는 주.
회사의 행위임.
10. Cranson v. International Business Machines Corp. --- Court of Appeals of Maryland, 1964 --- 234 Md. 477, 200 A.2d 33
HORNEY, J., delivered the opinion of the Court.
1. Fact
In April 1961, Cranson invested in a new business corporation, agreeing to purchase stock and take on roles as an officer and director. He reveived a stock certificate indicating ownership of shares, and the corporation operated as such, using corporated bank accounts and manitaining records. Cranson, elected president, conducted all transactions, including dealing with I.B.M., as an officer. Despite an attorney’s oversight, the certificate of incorporation, signed before May1, 1961, was not field until November 24, 1961, During this time, the corporation purchased eight typewriters from I.B.M., resulting in a remaining balance of $4,300.30, leading to this lawsuit.
2. Issue
Whether an officer of a defectively incorporated association may be subjected to personal liability under the circumstances of this case.
3. Rule
Ballantine, op.cit., § 29 - The second, the doctrine of estoppel to deny the corporate existence, is generally employed where the person seeking to hold the officer personally liable has contracted or otherwise dealt with the association in such a manner as to recognize and in effect admit its existence as a corporate body.
4. Application
The International Business Machines Corporation sued Cranson for typewriter payments owed by the Bureau, moving for summary judgment. Cranson argued the Bureau was a de facto corporation and denied personal liability. IBM claimed the Bureau's failure to file invalidated its existence. Despite this, IBM dealt with the Bureau as a corporation, estopping it from denying incorporation. Legal doctrine supports estoppel against those recognizing an association as a corporation. Courts in similar cases upheld estoppel, such as in Tarbell v. Page and Lockwood v. Wynkoop. Therefore, IBM cannot deny the Bureau's corporate existence, absolving Cranson of typewriter payment liability.
5. Conclusion
Cranson was not liable for the balance due on account of the typewriters.
Judgment reversed, the appellee to pay the costs.
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회사 설립되기전 director로서
회사가 책임질 것이라는 명시가 있었음
회사 설립전의 행위를 회사가 책임지는지여부.
회사로 계약맺은것. 5월 17일 - 5월 18일 회사임.
회사 설립 후의 행위. de facto
11. Matter of Whatley --- US Court of Appeals, 5th circuit, 1989 --- 874 F.2d 997
EDITH H. JONES, Circuit Judge:
1. Fact
Ahatley Farms, incorporated in 1975 by John W. Whatley and Ruby G. Whatley , did not formally transfer farming equipment to the corporation. John Whatley used personal loans to buy equipment, and in 1981, Whatley farms obtained an SBA loan with a floating lien in Kemper County. Later , in 1983, John Whatley granted Guaranty Bank a security interest in the same equipment. Both SBA and the bank filed financing statements, but the SBA’s was in Kemper County, not with the secretary of state. When the Whatleys filed for Chapter11 bankruptcy in 1984, a priority dispute emerged between SBA and Guaranty Bank.
2. Issue
whether Whatley Farms was a de facto corporation under Mississippi law and whether Whatley Farms had sufficient rights in the collateral such that it was capable of granting a security interest in the farming equipment to the SBA.
3. Rule
* Mississippi law[ In Allen v. Thompson, 248 Miss. 544, 158 So.2d 503 (1963)] (1) a valid law under which the entity could be incorporated, (2) a bona fide attempt to organize a corporation under the law (3) an actual exercise of corporate powers.
* Matter of Samuels & Co., Inc., 526 F.2d 1238 (5th Cir.1976) - A debtor need not have legal title to equipment in order to grant a creditor a security interest. Although one cannot generally encumber another's property, several exceptions have long been recognized. Consent by the property owner constitutes one such exception. See In re Pubs, 618 F.2d 432, 436 (7th Cir.1980).
4. Application
Whatley Farms, Inc. is considered a de facto corporation under Mississippi law, allowing it to own and grant a security interest in the farm equipment it continuously used and depreciated for tax purposes.Mississippi law recognizes the concept of de facto corporations, requiring a valid law for incorporation, a bona fide attempt to organize, and an actual exercise of corporate powers.Despite some lapses in corporate formalities, Whatley Farms demonstrated a bona fide attempt to organize by having corporate officers, filing a certificate of incorporation, and conducting business through a corporate bank account.Whatley Farms' use of corporate powers, such as authorizing loans and pledging assets, further supports its de facto corporate status.The Uniform Commercial Code allows a corporation to grant a security interest in collateral without legal title, as long as the debtor has "rights in the collateral," which Whatley Farms demonstrated through its actions.John Whatley's consent to pledge the farming equipment on behalf of Whatley Farms, as evidenced by the SBA's security agreement and financing statement, establishes the corporation's rights in the collateral.The validity of the SBA's security agreement is upheld, as the debtor's signature on the agreement, even if the owner of the collateral is not the same as the debtor, fulfills the requirements of the Uniform Commercial Code.
Whatley Farms was a de facto corporation under Mississippi law. Furthermore Whatley Farms had sufficient rights in the collateral such that it was capable of granting a security interest in the farming equipment to the SBA.
5. Conclusion
We REVERSE the judgment of the district court, affirming the bankruptcy court, which rejected the SBA's claimed priority lien in the farming
equipment.
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회사로 계약 맺었다고 나옴. de facto.
SBA가 이김.
비교) promoter는 회사 설립의무있음.
거짓으로 회사 설립하는것도 안됨. 회사에게 이익을 줘야함. fiduciary duty위반.
회사 설립할 생각 없는데 상대방 기망해서 이득얻으면 사기.
이전사건들은 회사설립전의 case들.
이번case9,10,11들은 다른 case임. de facto 상태에서 계약을 맺은것임.
case 9,10: de jure 전인데 de facto상태에서 계약맺은것.
case 11 : de facto상태에서 loan agreement 맺은것.
미국의 corporation은 법인임.
회사가 은행에서 돈빌렸다. 1순위다. 나중에 개인한테 빌린것 2순위로 등록했다.
회사가 결함이 있을 때 결함이 있는 것 인정되는 주다. 그대로 1순위다.
12. Bartle v. Home Owners Coop --- Court of Appeals of New York, 1955 --- 309 N.Y.103, 127 N.E.2d 832
FROESSEL, J.
1. Fact
Plaintiff, as bankruptcy trustee of Westerlea Builders, Inc., seeks to hold defendant liable for the subsidiary’s contract debts. Westerlea, defendant’s wholly owned subsidiary, faced financial troubles during construction of low-cost housing. Plaintiff argues the lower courts erred in not piercing Westerlea’s corporate veil. Additionally, plaintiff contends that defendant pledged assets for creditor satisfaction and seeks recovery under the doctrine of unjust enrichment.
2. Issue
Whether the doctrine of "piercing the corporate veil" is invoked to the instant case without fraud, misrepresentation and illegality.
3. Rule
*International Aircraft Trading Co. v. Manufacturers Trust Co., 297 N.Y. 285, 292;
Generally speaking, the doctrine of "piercing the corporate veil" is invoked "to prevent fraud or to achieve equity"
4. Application
Plaintiff's principal contention on this appeal is that the courts below erred in refusing to "pierce the corporate veil" of Westerlea's corporate existence. It found that while the defendant, as owner of the stock of Westerlea, controlled its affairs, the outward indicia of these two separate corporations were at all times maintained during the period in which the creditors extended credit; that the creditors were in no wise misled; that there was no fraud; and that the defendant performed no act causing injury to the creditors of Westerlea by depletion of assets or otherwise. There has been neither fraud, misrepresentation nor illegality. Defendant's purpose in placing its construction operation into a separate corporation was clearly within the limits of our public policy.
5. Conclusion
The judgment appealed from should be affirmed, without costs. ( The doctrine of "piercing the corporate veil" is not invoked to the instant case without fraud, misrepresentation and illegality. )
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회사의 유한책임이 무한책임으로 바뀐다?
shareholder - 개인이 아니라 회사(주주)일경우.
pierce 안된다면 회사가 책임 안진다는 의미..
pierce 된다면 회사 책임진다는 의미(주식투자 외의 것으로 회사가 책임짐).
13. Dewitt Truck Brokers v. W. Ray Flemming Fruit Co. --- US Court of Appeals, 4th circuit 1976 --- 540 F.2d 681
DONALD RUSSELL, Circuit Judge:
1. Fact
In this action on debt, the plaintiff seeks, by piercing the corporate veil under the law of South Carolina, to impose individual liability on the president of the indebted corporation individually. The District Court, making findings of fact which may be overturned only if clearly erroneous, pierced the corporate veil and imposed individual liability. The individual defendant appeals.
2. Issue
In this action on debt, can the plaintiff seek, by piercing the corporate veil under the law of South Carolina, to impose individual liability on the president of the indebted corporation individually?
3. Rule
* Anderson v. Abbott (1944) - Proof of plain fraud is not a necessary element in a finding to disregard the corporate entity.
* 18 Am.Juris.2d at 559.- Accordingly, "in an appropriate case and in furtherance of the ends of justice," the corporate veil will be pierced and the corporation and its stockholders "will be treated as identical."
* Coryell v. Phipps (5th Cir. 1942), 128 F.2d 702 - This power to pierce the corporate veil, though, is to be exercised "reluctantly" and "cautiously" and the burden of establishing a basis for the disregard of the corporate fiction rests on the party asserting such claim.
4. Application
The company was a closed one-man company at least from the start. For all of the years the company existed, there was no record of a substantive board of directors, and Fleming acknowledged that this was the case. The district court had evidence to uphold the findings, which were not for the benefit of all shareholders, but for the financial benefit of Fleming, who was the only shareholder to receive a penny of profit from the company for more than a decade in which the company operated and who made all of the company's decisions and controlled its operations during that time. In this case, the authorities can pierce the corporate veil regardless of fraud.
5. Conclusion
The judgment of the District Court is AFFIRMED.
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대주주가 불법행위해서 대주주에게 불법행위 책임 묻는 것은 pierce하는것X
Pierce는 대주주가 자신의 회사가 아닌것을 자신의 회사인것처럼 control 하는경우.
piercing과 agency이론 다름.
agency rule - shareholder와 회사와의 관계가 주종관계가 되어 pierce 할 수밖에 없음. agency관계 있으면 컨트롤 했다는 것이고, fraud없어도 된다.
14. Walkovszky v. Carlton --- Court of Appeals of New York 1966 --- 18 N.Y.2d 414, 276 N.Y.S.2d 585, 223 N.E.2d 6
FULD, J.
1. Fact
The plaintiff was severely injured in New York City by a taxicab owned by Seon Cab Corporation and operated negligently by Marchese. Carlton, a stockholder in 10 corporations, including Seon, each with two cabs, is accused of operating them as a single entity. The plaintiff claims the corporate structure is an unlawful attempt to defraud the public.
2. Issue
whether the plaintiff is entitled to hold their stockholders personally liable for the damages sought because the multiple corporate structure constitutes an unlawful attempt "to defraud members of the general public" who might be injured by the cabs.
3. Rule
*International Aircraft Trading Co. v. Manufacturers Trust Co., 297 N.Y. 285, 292. : The courts will disregard the corporate form, or, to use accepted terminology, "pierce the corporate veil", whenever necessary "to prevent fraud or to achieve equity".
* whenever anyone uses control of the corporation to further his own rather than the corporation's business, he will be liable for the corporation's acts "upon the principle of respondeat superior applicable even where the agent is a natural person". (Rapid Tr. Subway Constr. Co. v. City of New York, 259 N.Y. 472, 488.) Such liability, moreover, extends not only to the corporation's commercial dealings (see, e.g., Natelson v. A. B. L. Holding Co., 260 N.Y. 233;
* If Carlton were to be held individually liable on those facts alone, the decision would apply equally to the thousands of cabs which are owned by their individual drivers who conduct their businesses through corporations organized pursuant to section 401 of the Business Corporation Law and carry the minimum insurance required by subdivision 1 (par. [a]) of section 370 of the Vehicle and Traffic Law.
4. Application
The corporate form may not be disregarded merely because the assets of the corporation, together with the mandatory insurance coverage of the vehicle which struck the plaintiff, are insufficient to assure him the recovery sought. In point of fact, the principle relied upon in the complaint to sustain the imposition of personal liability is not agency but fraud. If it is not fraudulent for the owner-operator of a single cab corporation to take out only the minimum required liability insurance, the enterprise does not become either illicit or fraudulent merely because it consists of many such corporations. The plaintiff's injuries are the same regardless of whether the cab which strikes him is owned by a single corporation or part of a fleet with ownership fragmented among many corporations. Whatever rights he may be able to assert against parties other than the registered owner of the vehicle come into being not because he has been defrauded but because, under the principle of respondeat superior, he is entitled to hold the whole enterprise responsible for the acts of its agents. In sum, then, the complaint falls short of adequately stating a cause of action against the defendant Carlton in his individual capacity.
5. Conclusion
Reversed. The plaintiff is not entitled to hold their stockholders personally liable for the damages sought.
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M 결혼
Y
L 부동산
E 유언집행자
G
S ~ 이 case 분야.
남의 빚을 대신 갚아주겠다는 것을 문서로 안할경우 책임X.이 사건에서는 문서로 할 필요가 없다.
assurance 문제상 빚이 없는데 미리 이행하도록 약속하는것 안된다. 문서필요없음.
제3자의 채무이행 약속. 채무이행 약속 누가 했나.
injustice ? 주주총회등 안열었는데 별도 이득얻는것 없고 손해도 없다면
pierce안되나? (이 문제는 다음 케이스들에서 다시 다룸)
15. Radaszewski v. Telecom Corp --- US court of appeals, 8th circuit 1992 --- 981 F.2d 305
RICHARD S. ARNOLD, Chief Judge.
1. Fact
This is an action for personal injuries filed on behalf of Konrad Radaszewski, who was seriously injured in an automobile accident on August 21, 1984. Radaszewski, who was on a motorcycle, was struck by a truck driven by an employee of Contrux, Inc.
2. Issue
Under Missouri law, whether Radaszewski can "pierce the corporate veil," and hold Telecom liable for the conduct of its subsidiary, Contrux, and Contrux's driver.
3. Rule
*Missouri law- Collet v. American National Stores, Inc., 708 S.W.2d 273 (Mo.App. 1986). To "pierce the corporate veil test," one must show;
(1) Control, not mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; and
(2) Such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or dishonest and unjust act in contravention of plaintiff's legal rights; and
(3) The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.
*Consolidated Sun Ray, Inc. v. Oppenstein, 335 F.2d 801 (8th Cir.1964) :
Making a corporation a supplemental part of an economic unit and operating it without sufficient funds to meet obligations to those who must deal with it would be circumstantial evidence tending to show either an improper purpose or reckless disregard of the rights of others.
4. Application
Radaszewski had alleged sufficient facts to satisfy the requirement of control. We further held that the District Court had not allowed plaintiff enough time for discovery. If the subsidiary is financially responsible, whether by means of insurance or otherwise, the policy behind the second part of the Collet test is met. Insurance meets this policy just as well, perhaps even better, than a healthy balance sheet.We hold that plaintiff has made no showing of any genuine issue of material fact with respect to the dishonesty or improper-conduct element of the Collet test. So Radaszewski can't "pierce the corporate veil," and hold Telecom liable for the conduct of its subsidiary, Contrux, and Contrux's driver.
5. Conclusion
Affirm the judgment of the District Court dismissing the complaint for want of jurisdiction, but modify that judgment to provide that it is with prejudice as to Radaszewski's complaint against Telecom.
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일반적으로 모회자가 자회자에 대해서 책임 없다.
이 사건은 모회사에 책임을 물음. 자회사가 자금능력 부족해서.
원고와 피고가 서로다른 주의 주민일때 연방법원으로 갔지만 주법 적용.
이 사건 5가지중 policy 관한 3가지는 암기를 해야.
이 사건 issue? contrux? 가 책임이 있는지 ..
그런데 이 사건에서는 Contrux가 책임있는지 안따지고 있음.
첫번째 이슈ㅡ jurisdiction(관할권) 있는가.
corporation을 pierce할 수 있는가. (다른 이슈로 affirm함)
3가지 요소가 필요한데,
3가지 중의 하나인 자본부족은 아니다.
Radaszewski 은 undercapitalization을 주장.
모회사가 책임지려면 3가지요건필요한데 2가지만 나온 상황.
16. Cargill, Inc. v. Hedge --- Supreme Court of Minnesota, 1985 --- 375 N.W.2d 477
SIMONETT, Justice.
1. Fact
Defendant-respondent Sam Hedge and his wife entered into a contract for deed for a farm in 1973, later assigning it to Hedge Farm, Inc., a family farm corporation. Between 1976 and 1979, Sam Hedge made purchases from plaintiff-appellant Cargill, Inc., on account. Cargill filed suit in 1980 upon learning of the corporation, leading to a judgment against Sam Hedge and Hedge Farm, Inc. Cargill became the successful bidder at an execution sale in 1982. An injunction and tolling of the redemption period occurred upon the motion of the judgment debtor, with Annette joining as an intervenor.
2. Issue
Do the owner-occupants of a farm, by placing their land in a family farm corporation, lose their homestead exemption from judgment creditors?
3. Rule
The right to a homestead exemption from execution is a constitutional right. Minn. Const. art 1, § 12. This right exempts from seizure or sale "the house owned and occupied by the debtor as his dwelling place, together with the land upon which it is situated,"
4. Application
Annette Hedge is the sole stockholder of Hedge Farm, Inc. The court of appeals felt that this gave Annette an "equitable interest" in the property which, together with occupancy, constituted the kind of ownership which would allow the Hedges to assert a homestead exemption in the corporate property. But if Annette is the sole "owner" of the farm, there is no need to assert any homestead exemption because Annette is not a debtor. They operated the farm as their own. They had no lease with the corporation and paid no rent. The farmhouse was their family home. Annette Hedge owned all the stock. The corporation was as much an alter ego for the Hedges as Mr. Roepke's corporation was for him. This state has long recognized the importance, notwithstanding the just demands of creditors, for a debtor's home to be a "sanctuary." As a co-vendee, Sam Hedge, the debtor, is entitled to claim a homestead exemption in 80 acres of his farm, and the creditors' execution sale of the exempted 80 acres is void.
5. Conclusion
Affirmed.
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농장을 회사로 운영, 농장에서 산다. 주거지는 채권자의 집행으로부터 보호.
이 fact에서 pierce할 수 있나. reverse piercing. 왜?
reverse위한 조건.
개인의 주거지며, 채무자가 아니어야한다.
만약 Annette가 debtor가 아니고 유일한 소유주라면, homestead exemption을 강조할 필요가 없다.
Annette가 채무자면 강제집행하려할텐데, 이 경우 homestead exemption로 항변 가능.
개인이 유일한 소유주고 농장에서 거주하는 경우 강제집행 못한다.
17. Stark v. Flemming --- US court of Appeals 9th circuit, 1960 --- 283 F.2d 410 PER CURIAM.
1. Fact
Appellant(Mrs.Stark) placed her assets — a farm and a duplex house — in a newly organized corporation. Then she began to draw $400 per month as salary. The Secretary has found the corporation was a sham. There is no doubt that the corporation was set up to qualify appellant in a short time for social security payments.
2. Issue
Whether the motivation to obtain social security by organization a corporation defeats the validity of the corporation.
3. Rule
Congress could have provided that the motivation to obtain social security by organizing a corporation would defeat the end. It did not.
4. Application
Here there seems to have been proper adherence to the normal corporate routines. When the Secretary determines a reasonable salary, then the amount of social security payments can be readily computed.
We, therefore, hold that the district court's judgment should be vacated and that the case should go back through the district court for direction to the Secretary to reevaluate the case on an approach consistent with what we have indicated herein.
5. Conclusion
Reversed.
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stark case pierce 안됨.
social security 받기 위한 조건 - 회사 routine만 있으면 가능.
실업급여 제공하기 위해서 실업급여의 취지가 회사의 routine만 있으면 된다는것은 아님.
이 케이스에서 social security 인정하는것은
법규정에 배제요건안나옴. 하지만 어떤경우 받을 수 없는지 규정하고있음.
18. Roccograndi v. Unemployment Comp. Bd. Of Review --- Superior court of Pennsylvania, 1962 --- 197 Pa.Super. 372, 178 A.2d 786
OPINION BY MONTGOMERY, J., March 21, 1962:
1. Fact
The appellants are all members of a family who are involved in the wrecking business together. Each owns 40 shares of stock in the company which has 205 outstanding shares, and all three are officers of the company. The officers of the company, during periods of insufficient work to employ all the members of the family, hold a meeting and by majority vote decide which members shall be "laid off". It was decided by majority vote of all the stockholders that the appellants would be "laid off" because it was their respective turns. Immediately thereafter claims for unemployment compensation benefits were filed by the three appellants. The Bureau of Employment Security denied the claims on the grounds that the appellants were self-employed. Upon appeal the referee reversed the bureau and held the appellants to be entitled to benefits.
2. Issue
Whether Appellants were in fact unemployed and entitled to unemployment benefits
3. Rule
DePriest Unemployment Compensation Case, 196 Pa. Superior Ct. 612, 177 A. 2d 20, in which this Court held that the corporate entity may be ignored in determining whether the claimants, in fact, were "unemployed" under the act, or were self-employed persons whose business merely proved to be unremunerative during the period for which the claim for benefits was made.
4. Application
Appellants were self-employed persons whose business merely proved to be unremunerative during the period for which the claim for benefits was made.The Board of Review reversed the referee's decision, holding that the appellants had sufficient control to lay themselves off and that they did just that. Therefore the appellants were self-employed and must be denied eligibility for benefits under section 402(h) and section 402(b)(1) of the law.
5. Conclusion
Affirmed.
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social security 받기 위한 조건 - 회사 routine만 있으면 가능.
실업급여 제공하기 위해서 실업급여의 취지가 회사의 routine만 있으면
된다는것은 아님.
case 17 에서 social security 인정하는것은
법규정에 배제요건안나옴. 하지만 어떤경우 받을 수 없는지 규정하고있음.
case 18은 이 규정에 따라서 받을 수 없음.
17 인정이유는 연방법규정에 의해 받을 수 있음.
case 18의 경우는 self employee인 경우 안된다라고 규정있어서 실업급여 안됨
19. United States v. Kayser-Roth Corporation --- US district court, district of Rhode Island, 1989 --- 724 F.Supp. 15
FRANCIS J. BOYLE, Chief Judge.
1. Fact
In the somnolent village of Forestdale, Rhode Island, the ground waters run deep. Unfortunately, the waters also contain pollutants. Having long been home to machining and textile manufacturing industries, Forestdale found itself a victim of its own hospitality. Trichloroethylene, sometimes a by-product of those industries, had filtered into Forestdale's private and public residential water wells. The Government alleges that Stamina Mills, Inc., a defunct textile operation, was a source of the contaminant.
2. Issue
The issue is whether Kayser-Roth Corporation, the parent corporation and sole shareholder of Stamina Mills, Inc., is responsible for clean-up and response costs generated at least in part by a spill of a hazardous substance on its subsidiary's property in 1969.
3. Rule
* CERCLA liability is strict, a party will be held responsible upon proof that: (1) a release or threat of a release of a hazardous substance occurred; (2) the government or other authorized party incurred response costs as a result of the release, and (3) the party falls into one of the four categories of responsible parties. Id.
The four categories are: (1) the current owner or operator of the site; (2) any former owner or operator of the site at the time of the release or threatened release; (3) a transporter of hazardous materials which are released; and (4) a generator of hazardous waste.
* A parent corporation that controls the management and operations of its wholly owned subsidiary can be held responsible for its subsidiary's CERCLA liability without piercing the corporate veil. E.g., Idaho v. Bunker Hill Co., 635 F.Supp. 665, 671-72 (D. Idaho 1986)
4. Application
Kayser-Roth has exhibited overwhelming pervasive control over Stamina Mills. Many of the same factors used in holding Kayser-Roth liable as an operator are relevant. Kayser-Roth's control over environmental matters; its policy of approving all capital expenditures of greater than $5,000; its stranglehold on income and expenses; its practice of placing Kayser-Roth personnel in Stamina Mills' director positions, thereby precluding other Stamina Mills executives from significant daily decision-making and its overwhelming control over Stamina Mills' financial and operational structure add flesh to the skeletal proposition that Kayser-Roth's corporate existence should be disregarded. Accordingly, Stamina Mills' veil should be pierced to hold Kayser-Roth liable, not only because public convenience, fairness, and equity dictate such a result, but also due to the all encompassing control which Kayser-Roth had over Stamina Mills as, in fact and deed, an owner. Any other result would provide too much solace to deliberate polluters, who would use this device as an escape.
5. Conclusion
SO ORDERED.( Kayser-Roth Corporation, the parent corporation and sole shareholder of Stamina Mills, Inc., is responsible for clean-up and response costs generated at least in part by a spill of a hazardous substance on its subsidiary's property in 1969.)
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일반적으로 모회사는 자회사는 책임 없음.
오염물질배출회사 자회사.
pierce 조건 1,2,3번 다 충족됨.
owner and operator 해당.
piercing 하지 않고 책임지우는 방법은?
CERCLA를 적용. operator로 책임지우기 위해서 ~~~ 요건 있어야.
CERCLA 없이 책임지우게하는 방법은 없나?
이전 케이스들에서 모회사에게 책임지우기위한 요건 중 3번이 너무 어려움
원고가 입증하기 어려움. 그래서 CERCLA 만들어짐.
CERCLA있으면 입증쉽다.
20. Pepper v. Litton --- US Supreme Court 1939 --- 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
1. Fact
In 1931, Pepper sued Dixie Splint Coal Company and Litton in a Virginia state court for royalty accounting. Litton, expecting Pepper to win, had Dixie Splint Coal Company confess a $33,468.89 judgment for alleged salary claims dating back five years. P.H. Smith, Dixie Splint's secretary and treasurer, acted under Litton's influence. Litton waited until Pepper's case outcome was certain before executing the judgment. Pepper won a $9,000 judgment on February 19, 1934, but execution was suspended for appeal. Litton, instead, executed his confessed judgment on March 19, 1934, during Pepper's suspended execution.
2. Issue
Whether the District Court may properly disallow or subordinate a stockholder’s judgment.
3. Rule
* Local Loan Co. v. Hunt, 292 U.S. 234, 240.
“ courts of bankruptcy are essentially courts of equity, and their proceedings inherently proceedings in equity."
4. Application
Litton allowed his salary claims to remain inactive until the debtor corporation faced financial troubles. He then acquired the bankrupt company's assets, impairing Pepper's rights and harming other creditors. The District Court found evidence of a planned fraudulent scheme, justifying the disallowance or subordination of Litton's claims. This decision was upheld as Litton, using his insider position, manipulated affairs to benefit another company he controlled, not fairly treating the creditors of Dixie Splint Coal Company. Despite being a fiduciary, Litton cleverly acquired assets through legal maneuvers, valuing his services over creditors' interests. So the District Court may properly disallow or subordinate a stockholder’s judgment.
5. Conclusion
Reversed. (Accordingly the judgment of the Circuit Court of Appeals is reversed and that of the District Court is affirmed.)
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trustee가 짐.
property- Litton이 excution sale에서 얻은것.
trustee에게 주어라. excution sale무효화하면 과거사건을 뒤집는 것임.
Litton은 property획득못하게 되고 그러면 trustee것이 됨.
fiduciary duty 위반으로 property가 trustee에게 판결함.
항소법원은 1심판결을 뒤집음.
Litton에 의해 획득된 judgement( salary에 대한 판결)
trustee가 그 판결 set aside해달라고 했는데 졌음.
연방대법원에서 또할 수 있음.
bankruptcy court -equality
파산법원은 claim의 허용을 “형평”으로 한다.
형평으로는 인정못함. 룰에 의해 이기더라도 형평으로 지면 지는 것임.