Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/704

 § 688.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. XII. failure of trol the corporate management and affairs. 1 If these the corpo- r. ° ration to facts appear in the complaint, and the complaint further show that the corporation, and the plaintiff's interests therein, would be injured by the commission of the act sought to be prevented, it will be sustained by a court of equity. 2 The same principles apply to actions brought by share- holders against directors, after the commission of the unlawful acts, for damages or to compel the directors to account for profits which they have unlawfully made. The complaint will be sustained if the plaintiff show an injury to him- self through injuries to the corporation, and either that the corporation has been requested to sue and has refused or failed ; 3 or that it is not iu a situation to sue, or is under the control of the guilty officers. 4 And a shareholder in his com- plaint in such an action should state particularly the efforts 1 See §§ 139-142, 553-560. Absence | mandamus to compel the officers to of such allegations, however, cannot hold the annual election for trustees. be taken advantage of iu the first instance in the appellate court. Bulkley v. Big Muddy Iron Co., 77 Mo. 105. 9 Wright v. Oroville M'g Co., 40 Cal. 20; Sears v. Hotchkiss, 25 Conn. 171 ; Pearson v. Tower, 55 N. H. 215; Bliss v. Anderson, 31 Ala. 612. See Elkins v. Camden and Atlantic R. R. Co., 36 N. J. Eq. 467; Can- non v. Trask, L. R. 20 Eq. 669 ; Watts' s Appeal, 78 Pa. St. 370; Sel- lers v. Phoenix Iron Co., 13 Fed. Rep. 20. Compare Leslie v. Loril- lard, 110 N. Y. 519; Perry v. Tnsca- People v. Cummings, 72 N. Y. 433. 8 Greaves v. Gouge, 69 N. Y. 154; Smith v. Poor, 40 Me. 415 ; Booth v. Robinson, 55 Md. 419 ; Brewer v. Boston Theatre, 104 Mass. 378 ; Evans v. Brandon, 53 Tex. 56; Cogs- well v. Bull, 39 Cal. 320; Hazard v. Durant, 11 R. I. 195 ; Montgomery Light Co. v. Lahey, 121 Ala. 131. Compare Heath v. Erie R'y Co., 8 Blatchf. 347. 4 Brewer v. Boston Theatre, 104 Mass. 378; Rogers v. Lafayette Agri- cultural Works, 52 Ind. 296; Carter v. Ford Glass Co., 85 Ind. 180; Pond loosa Co., 93 Ala. 304; Byers v. Rol- j v. Vermont Valley R. R. Co., 12 lins, 13 Col. 22; Marcusse v. Gullet' Blatchf. 280; Heath v. Erie R'y Co. Gin Co., 52 La. Ann. 1383. Where, by a statute on failure to publish annual reports the share- holders are made jointly and sev- erally liable for the debts of the corporation, one or more share- holders may have a mandamus to compel the officers to publish the reports. Smith v. Steele, 8 Neb. 115. So a shareholder may have a 684 8 Blatchf. 347 ; Ryan v. Leaven- worth, etc., R'y Co., 21 Kan. 365 ; Peabody v. Flint, 6 Allen, 52; Mus- sina v. Gnldthwaite, 34 Tex. 125 ; Jones v. Johnson, 10 Bush (Ky. ), 649; Hilles b. Parrish, 14 N. J. Eq. 380; Booth v. Robinson, 55 Md. 419; Neall v. Hill, 16 Cal. 145; Deaderick v. Wilson, 8 Bax. (Tenn.) 108; Davis v. Gemmell, 70 Md. 356;