Page:North Dakota Reports (vol. 48).pdf/589

 familiarity with the records of the corporation. As stockholders the books were always open to them. The books are not shown to have been complex. We are of the opinion that substantial justice is reflected in the judgment appealed from, and it is in all things affirmed. Both parties having appealed, the order will be “without costs.”

, J., concurs.

, J., not participating.

, C. J. (specially concurring). The principles of law applicable to trustees in dealing with property, as well as the legal principles dealing with the subject of the “Good will” of a business, its nature, value, sale, etc., were at great length set forth and fully analyzed in the case of Macfadden v. Jenkins, go N. D. 422, 169 N. W. 151, and two provisions of our Code relative to trusts (§§ 6282 and 6283) were there fully analyzed. Also §§ 5465 and 5466 relative to ‘good will” of a business were thoroughly considered, and a thorough and extended analysis of the subject of good will there made.

Mr. Justice in his opinion of the case at bar has adduced no different principle of law relative to trusts or the duties of trustees eating with trust property, nor with reference to the subject of the “good will” than that heretofore announced in the case of Macfadden v. Jenkins, supra.

, J. (dissenting in part.) Without attempting to swell the record by arguing either the law or the facts, I hold that plaintiffs are not entitled to recover for their stock and good will more than $200 a share, with interest from August 13, 1918. That was the full value of the stock, including the good will of the business when the transfer was made to the new company. Assuredly it could not have been sold for a greater amount. If the managers of the new corporation by their work, skill, and personal credit happened to realize a greater profit, it was their own good fortune. They did all the work, took all the risk of loss, while the plaintiffs did nothing and took no risk whatever. As they did not risk any loss, 6 per cent. on their capital is a fair and legal compensation for the use of their money. The defendants could easily have borrowed money at that rate. There is a gross wrong in allowing the plaintiffs to stand by and speculate on the profits of the new com-