dissenting:
I cannot concur in the result reached by the majority. The Chancellor saw and heard nine witnesses and examined forty-six exhibits over a period of two days and this court should not substitute its judgment as to the issues of fact decided by him.
I disagree with the majority that plaintiffs failed to prove the existence of an agreement. The fact that there were no corporate minutes of the alleged transaction should not be detrimental to plaintiffs’ cause of action in that the corporate records were within the complete control of defendants. The majority’s assertion that plaintiffs failed to prove official action by the corporation binding the corporation to buy stock is likewise in error in that notice of a meeting was sent out in July and the purpose of said meeting, set out in the notice, was to discuss the sale and retirement of the Goldammer stock. The testimony of Mr. Wobith, a disinterested witness, unequivocally shows that one of the purposes of the loan from the bank was to obtain money to retire the Goldammer stock. The majority is in error in stating that because there was no Goldammer interest to buy, the impact of Wobith’s testimony was diminished. It is true that the interest was sold to Louis Carras, but Carras held the stock only one day and then transferred it to his father-in-law, Spiros Regas, one of the defendants.
I likewise disagree with the majority that plaintiffs failed to prove (1) that the issuance of an injunction would preserve the status quo and (2) that an emergency or threat of irreparable damage existed. First of all, the issuance of an injunction would insure that the number of directors remain unchanged and that the existing officers remain in their positions. Secondly, an emergency was shown to exist in that the transfer of the Goldammer stock would shift complete control of the corporation to defendants. Plaintiffs acted immediately upon receiving notice of a meeting, whereby stock in the corporation was to be transferred. Finally, a threat of irreparable damage was shown to be imminent in that defendants threatened to use the Goldammer shares for the purpose of electing officers and directors and to raise the number of directors from four to five so as to deprive the plaintiffs of their position as directors, officers and employers.
I disagree with the majority’s position that plaintiffs had to establish the elements of fraud in order to obtain a temporary injunction. Plaintiffs only had to establish that an agreement existed between the parties, and that defendants were engaged in a conspiracy in an attempt to breach that agreement. The Chancellor found that an agreement existed and that the breach of said agreement would result in irreparable harm to plaintiffs. He further found evidence of a conspiracy among defendants. It was not an abuse of the Chancellor’s discretion for him to issue a temporary injunction.