Page:North Dakota Reports (vol. 48).pdf/588

 January 1, 1918. In addition, the record shows that the real property, carried on the books at $62,273.54, is, in fact, worth from $30,000 to $40,000 more than its book value. The equitable principles applicable in themselves necessitate the rejection of the defendants’ theory of values. Since liquidation was not in fact had, the plaintiffs are not bound by a “liquidation value,” but are entitled to follow their property into the more favorable investment.

On the whole record, we are impressed that the stock is not worth as much as plaintiffs contend. Our composite judgment of the value does not vary greatly from that arrived at by the trial court. We have concluded, therefore, that the judgment below should stand.

From the memorandum agreement entered into by Quirk, Follett, and Croil Hunter immediately after the discovery of the expiration of the charter, it is, indeed, reasonably to be inferred that a purpose was entertained by them to fully protect all of the stockholders through the organization of the new corporation, for the portions of the agreement hereinbefore quoted recite their obligations as trustees, the fact that some sacrifice and considerable expense would be incurred by liquidation through the ordinary process, and that to avoid this sacrifice, not only for themselves, but for “all other stockholders,” they proposed to form the new corporation “for the protection of such stockholders as are not parties to this instrument.” This original purpose was apparently departed from, however, before the trial of this action, for the record discloses an attempt on the part of the defendants to value the assets for purposes of satisfying the plaintiffs’ claims on a liquidation basis involving the very sacrifices that the carrying out of the agreement was designed to prevent, not only on behalf of those signing it, but on behalf of all other stockholders. This agreement, made before the self interest of some of the defendants was brought into conflict with the equities of the plaintiffs, is a virtual recognition of their rights as we find them to be.

In regard to the plaintiff’s contention that they should be allowed to recover, as part of the costs, the fees paid to the certified accountant, we are of the opinion that the contention must be denied. His services were principally valuable to the plaintiffs; the material assembled by him being already within the knowledge and ready grasp of the defendants. As far as this record shows, this information would have been readily available to the plaintiffs had they possessed the requisite