Cunningham's Appeal

Paxson J.

filed the following dissenting opinion:—

I do not fully agree with the majority of the court in their construction of the Act of 1876. But, conceding their view of it to be correct, I would not sustain this bill for obvious reasons. They may be briefly stated as follows:—

1. The complainant has no equity. His object is to get stock at $10 per share, for which other shareholders have in good faith paid $20. This is not equity; it is iniquity.

2. He has a full and adequate remedy at law. For the refusal of the company to allot him his proportion of the stock at par, he may sue at law and recover full damages. He has therefore sustained no injury which the law will not redress in the amplest manner. The right to particular shares of stock, where other shares can be bought in the market, is not a right which equity will enforce specifically. We have so decided, and it is familiar law: Foil’s Appeal, 10 Norris, 484.

8. It has been asserted, and it is undoubtedly true, that to enforce the complainant’s legal rights in this proceeding would inflict serious confusion upon the affairs of the defendant company. It is a well-settled rule in equity that a chancellor will not grant an injunction, even to enforce a legal righv, where the injunction will do more mischief than the evil sought to be redressed. Tins must continue to be the rule so long as his decree is of grace, not of right. Applying this principle to the case in hand, we find that a majority of the stock has already been issued under the arrangement adopted at the stockholder’s meeting, and cannot be recalled. Upon each share $20 has been paid in good faith. It requires but a moment’s reflection to see that a decree which requires the company to issue the balance of the stock at $10 must necessarily throw the affairs of the company into confusion, and produce the rankest injustice. If this is equity, it is equity misunderstood.

If there were circumstances of oppression in the case there! might be more ground for this severe exercise of power.. Nothing of the kind appears. On the contrary, the arrangement was entered into in entire good faith; in the belief that it was legal, and under the advice of counsel. Moreover, it was not pretended that all the stockholders were not treated alike. No one stockholder had any advantage over any other. The arrangement was evidently made with a view to the best interests of the company, and in my judgment was wise and conservative. That it was so may fairly be inferred from the fact that the legislature, by the subsequent Act of 29th June, *5591881, P. L., 121, expressly authorized the course of proceeding adopted by the company.

I can readily understand why the complainant did not resort to bis remedy at law. The measure of damages would in sucb ease have compensated him, but it would have given him no advantage over other stockholders. By filing this bill he gets his stock at $10 per share, for which other shareholders have paid $20, and which is worth in the market $31. Moreover, he has succeeded in throwing the affairs of the company into confusion.

Against such a mode of administering equity I enter my solemn protest.