Page:North Dakota Reports (vol. 48).pdf/574

 Murray, 121 N. W. 214; 39 Cyc. 172 and note 32; 1 Perry on Trusts (5 ed.) chap. 5, 166 et seq; Hammond v. Pennock, 61 N. Y. 145.

“The good will of a business is an asset and cannot be: appropriated by majority stockholders.” Mapes v. Metcalf, 10 N. D. 601; Cook on Corps. Vol. 2, § 641, p. 1835; Trentman v. Wahrenburg, 65 N. E. 1057, 1060 (Ind.) ; Merchants Ad. Sign Co. v. Sterling, 57 Pac. 468, 71 Am. St. Rep. 94.

, J. This is an action by two stockholders against a dissolved corporation and the directors as trustees thereof. The relief sought is a judgment that the individual defendants, the directors, be charged as trustees of the property and assets of the old corporation; that they be required to account for the same; that a sale of the property and assets of the dissolved corporation to a new corporation of similar name be adjudged to be null and void; that the affairs of the old corporation be liquidated according to law; that a receiver, trustee, or trustees, be appointed to conserve the property; that the plaintiffs be permitted to follow their interests in the old corporation by requiring the purchasing corporation to issue to them stock in proportion to their property interests in the old corporation; and for general relief. Upon a motion for the appointment of a receiver the district court denied the application, and from the order an appeal was’ taken to this court, where the order was affirmed. Langer v. Fargo Mercantile Co. et al., 174 N. W. go. After the conclusion of the trial on the merits, findings and conclusions were made by the district judge to the effect that the individual defendants became trustees; that no valid sale of the property and assets had been made by them; that the affairs of the dissolved corporation had never been lawfully liquidated; that the plaintiffs might elect, on or before May 20, 1921, whether they would take stock in the new corporation with an accounting for dividends earned after the formation of the new corporation, or take a money judgment for the value of their stock on August 13, 1918, the day of the formation of the new corporation, at $275 per share, with an accounting for profits and earnings to the date of the entry of judgment. The latter option was accepted, and judgment entered accordingly in favor of the plaintiffs for $39,873.10. From this judgment both parties have appealed, and the action is here for trial de novo.

Avoiding, for the present, the statement of any controverted facts,