Opinion
14279
April 15, 1936.
Before SEASE, J., Spartanburg, May, 1935. Affirmed.
Suit by Montgomery Crawford, Inc., etc., against Arcadia Mills, a corporation, for which H.A. Ligon and another were appointed Receivers. From orders denying the petitions of Susan Williams King, R.B. Cleveland, Mrs. R.B. Cleveland and Julius T. Jennings for payment of their claims in full out of funds in the Receivers' hands, they appeal.
The orders appealed from were as follows:
The order of Judge Sease denying the relief claimed by appellant Susan Williams King is as follows:
The issues arising on this petition and four others of kindred character were heard and argued on a stipulation and certain exhibits which present no disputed matters of fact. In disposing of the others, I will refer to this order for the reasoning whereby the conclusions are reached.
Under an order of the Supreme Court, filed October 12, 1934, and remitted to this Court, Arcadia Mills and all its assets were sold by the Receivers on November 14, 1934, for $736,000.00 for the purpose of liquidation ( Montgomery Crawford v. Arcadia Mills, 173 S.C. 464, 176 S.E., 589). All creditors have been paid in full, and a balance of $190,874.06 is now in the hands of the Receivers to be distributed to the preferred stockholders of the mill, after costs, commissions, fees, and expenses are paid. The par value of the outstanding preferred stock exceeds $800,000.00.
The petitioner contends that she is entitled to payment in full of the par value — $4,000.00 — of her 40 shares of preferred stock, with interest from July 1, 1933. The Receivers contend that, since the amount distributable to preferred stockholders is insufficient to pay more than a relatively small dividend, she must prorate with the others. These opposing contentions will be better understood from a narrative of the facts from which they spring.
Arcadia Mills was organized in 1902 with a capital stock of $200,000.00, all common stock. In 1920, the capital was increased to $400,000.00 by the issue of $200,000.00 of non-voting preferred stock. The resolution fixing preferences and conditions contained, among others, the following provisions:
"At the end of ten years, or on any dividend date thereafter, all of said first preferred stock * * * shall mature and become payable, provided the holder shall have given one year's notice in writing of his desire to have his stock or any portion thereof so retired. * * * In order to carry out the terms under which the said first preferred stock is issued, * * * no encumbance of any character in the form of a mortgage or lien shall be placed by the board of directors upon the plant of the company unless the same shall provide for the retirement of the first preferred stock, with accumulated dividends. * * * The company is to have the right to issue additional first preferred stock having like preferences, conditions and liabilities. * * *"
In 1923, an additional $600,000.00 of non-voting first preferred was issued under an identical resolution. The stock certificates recite:
"This preferred stock will mature and become payable in ten years from July 1, 1923, provided the holder has given one year's notice in writing."
The petitioner acquired 40 shares of this issue. Semi-annual dividends at the rate of 7 per cent. were paid through July, 1930. By the spring of 1931, the depression, commencing in the fall of 1929, had so adversely affected Arcadia Mills, along with all other textile mills, that its line of bank credit of more than a million dollars prior to 1930 had been so sharply contracted and such reductions exacted that its working capital was seriously impaired; and, finally, on June 23, 1931, Bankers Trust Company demanded mortgage security for the bank debts as a condition of extending the then existing and greatly reduced balances, writing to the mill:
"We are informed that the negotiations with J.L. Baily Co. cannot be concluded on a basis which would put you in position to liquidate your bank debt, and we are therefore advising that we must have our loans to you secured by a first mortgage on all the plant, equipment, etc., of Arcadia Mills. We reached this agreement this morning with Ernest Patton, vice-president of the South Carolina National Bank, and Mr. Blackford, of A.M. Law Co., and they expect to return to Spartanburg shortly and will acquaint you with these facts. We will give the stockholders of your company until August 1st to approve the execution of such a mortgage, and if such approval is not forthcoming at that time we shall be obliged to start suit for the payment of our notes."
This demand threw the "non-mortgage" and "fixed-maturity" features of the outstanding preferred stock into bold relief in the discussion of plans to avoid immediate and forced liquidation. On June 30, 1931, a stockholders' meeting was called for July 30th following, to consider and pass upon making the demanded mortgage and eliminating the "non-mortgage" and "fixed-maturity" provisions from the outstanding preferred stock by issuing in exchange for it new preferred stock with voting power and other compensating advantages. The notice outlined the proposal in detail and stated the reasons for it. It was accompanied by a letter from the directors saying that working capital had been impaired and that,
"The banks are pressing for the payment of their notes and will ask for a receivership unless the company is refinanced through the placing of a mortgage bond issue upon the plant. In order to effect the required refinancing without delay and to safeguard the investment of the stockholders, it is necessary that we have the consent of the stockholders to the execution of the mortgage and that the preferred stock now outstanding be exchanged for new preferred stock with somewhat different provisions."
This letter was addressed and sent to the preferred stockholders along with the notice. On July 20, 1931, an additional letter of information went to all stockholders containing the audited financial statement as of June 30th preceding, showing current debts of $582,000.00 and current assets of $347,000.00. This letter undertook further explanation of the urgent necessity of the proposed mortgage and proposed change in preferred stock conditions. It referred to the "non-mortgage" and "fixed-maturity" features. As to the latter, it said that the mill could not pay its debts, and therefore could not pay off the preferred stock, as creditors came ahead of stockholders. It undertook to answer the question as to what would be the status of non-assenting preferred stockholders by saying, "If a number of preferred stockholders fail to agree, receivership will likely result, with the possibility of complete loss to the stockholders." Seeking to define the status of preferred stockholders who might call their stock, they said: "There is no question of the inability of the company to pay them, and they rank junior to all creditors." On July 22nd, an influential group of local preferred stockholders addressed yet another letter to the preferred stockholders, urging support of the refinancing plan outlined in the notice calling the meeting for July 30th.
The meeting was held as noticed. Of the preferred stock, 89 per cent. was present or represented, and of the common, 77 per cent. The plan outlined in the notice, as modified on motion of Mr. R.B. Cleveland, was unanimously adopted, Mr. Cleveland's motion being to confer voting power on the new preferred immediately, instead of after a dividend was in default, as proposed in the notice.
In September, 1931, the Bankers Trust Company declined to go forward with the mortgage plan, and on September 16th brought suit in the United States District Court on its notes. The mill defended unsuccessfully upon the ground that it had agreed to extend time in consideration of mortgage security, and that its stockholders had accepted the conditions and authorized the mortgage. While willing to carry cut the agreement to extend time in return for a mortgage, South Carolina National Bank and John Z. Cleveland, whose claims were to be included in the mortgage, were unwilling that the Bankers Trust Company, by declining and suing, should gain an advantage over them. They sued, and the mill could not assert the defense available to it in the Bankers Trust Company case. Accordingly, both recovered judgment in October, 1932 — one for approximately $140,000.00 and the other for approximately $17,500.00. Almost immediately after the Bankers Trust Company suit, a number of preferred stockholders, on behalf of themselves and all other stockholders, common and preferred, brought suit in this Court to have a Receiver appointed for Arcadia Mills. A consent order ended this suit on November 30, 1931.
On that day, petitioner undertook to give to the mill the one year's notice in writing prescribed in her stock certificates for the payment of her stock on July 1, 1933.
Bankers Trust Company recovered judgment for approximately $240,000.00 on December 29, 1932, levied execution on the mill's personality on December 31, 1932, closing it down. This proceeding was commenced on January 2nd, and this Court appointed Receivers, who operated the mill until its sale under the order of the Supreme Court directing that liquidation be not further delayed.
From these facts the petitioner derives her contention that her stock is a contract with the mill which cannot be impaired by any action of the corporation, since she voluntarily remained away from the meeting of July 30, 1931, and did not thereafter surrender her certificates for exchange, but did, on November 30, 1931, exactly four months after that meeting, make written demand for payment on the expiration of the tenth year after the issue of her stock — July 1, 1933.
The receivers, on behalf of the preferred stockholders who exchanged their stock in accordance with the action of the meeting of July 30th, in reliance upon the extension of debts such action would gain, contend (1) that, under Section 7697 of the Code of 1932, providing for attaching conditions to outstanding stock not contemplated when it was issued, the feature of petitioner's stock on which she predicates her demand was eliminated by valid corporate action at the July 30th meeting; (2) that, by voluntarily absenting herself from the meeting and taking no action to prevent the carrying out of the plan there adopted, she is estopped from asserting an advantage over other stockholders, equal in right, status, and jeopardy, deriving solely from their unselfish and co-operative action in the interest of all; and (3) that, if the corporate action of July 30, 1931, was ineffective to eliminate the redemption feature of petitioner's stock, it was equally ineffective to eliminate that feature from the stock making up the balance of the $800,000.00 preferred. Because, the mill having notified all that it would not pay preferred stock if the notice was given, and the exchange having been predicated upon the condition stated in the notice that a mortgage would procure an extension of time for payment of bank debts, and such result not having followed that action, the exchange on the part of the others was induced by an unintentional but legal misrepresentation, and was unsupported by any consideration because of the failure of the plan adopted.
I am convinced that the contentions of the Receivers must be sustained. It must be remembered that the issue here is between the petitioner and other preferred stockholders who were equal with her in right and status before they undertook a mutual surrender of rights for the preservation of the rights of the petitioner and of themselves. The contention that the original conditions on which petitioner's stock were issued is a rigid contract, immune to change by corporate action, might have more to commend itself if the holders of the original $200,000.00 of voting common stock, which fixed the conditions, were undertaking to change the conditions to the injury of the petitioner and for the benefit of themselves. Such is not the case, because it is manifest that the holders of common stock can receive nothing from the proceeds of the receivership sale in this case. What she seeks is to have her stock paid in full by ratable contributions from the amount in the hands of the Receivers from the shares to be distributed to other preferred stockholders who were on an equal footing with her, and would be now had they not tried to surrender the advantage she claims in her interest and theirs. It may be said further that she shows no injury to herself from the attempted sacrificial action of the 89 per cent. of her class who voted to adopt the salvage plan.
Neither do I think that conditions and provisions in preferred stock can ever be a contract immune to change by valid corporate action. Section 7694 of the Code provides how conditions and preferences may be attached to stock to be issued. Section 7697 prescribes how conditions or penalties may be attached to stock already issued but not contemplated at the time of issue. It reads:
"§ 7697. To impose any conditions or to attach any penalties to a portion only of the stock of a corporation that was not contemplated or provided at the time said stock was issued, it shall be necessary that two-thirds of the stock so affected vote therefor after notice as aforesaid."
From this it is manifest that a power resides in two-thirds of the stock of any class to attach additional conditions or penalties, not contemplated at the time of issue, to such stock. It seems to be the purpose of the law to prevent a corporation from disabling itself to make such changes as may be necessitated by changes in conditions. It is a power that cannot be abdicated or bargained away, and is co-extensive with the life of the corporation itself, designed to preserve a flexibility of corporate action sufficient to meet the needs of changing times and conditions which human foresight cannot predict. The policy of the law is that this capacity to act for the good of all shall be inherent in every corporation; that a whimsical and obstinate minority may not capitalize at the expense of others what would otherwise be their necessary concurrence in a course necessary to preserve the rights of all. The provisions of Section 7697 and the power there given were incorporated in the petitioner's stock just as though they had been written therein, and the certificate had recited that it would be payable in ten years after issue on written demand, unless two-thirds of the preferred stockholders should see fit to change that provision. The resolution to issue the stock and fix its conditions could not repeal this law. All resolutions and by-laws must be conformable and subordinate to the general laws. Vestry of St. Luke's Church v. Mathews, 4 Desaus., 578, 6 Am. Dec., 619. Here, the statutory notice was given. More than two-thirds of the stock affected voted unanimously to eliminate the redemption feature. It was effectively eliminated. The meeting of July 30th was not for reorganization, merger, consolidation, or any fundamental corporate change which a majority could not lawfully effect.
Even in such a case, on the facts here, I think petitioner would have no standing in a Court of Equity. She acquiesced for four months. She did nothing to warn others of her intention to take the position here asserted. She took no action at the meeting to prevent what was proposed to be done or to show her opposition. In order to be received in a Court of Equity, a complaining minority stockholder must show an effort to obtain relief or prevent injury in the stockholders' meeting, and, failing, must promptly seek relief in equity. The petitioner is not even a dissenting stockholder.
"Small stockholders of a corporation who have refused their assent to every proposition are not entitled to relief in a Court of Equity where the other stockholders have apparently acted in good faith in the various proposals for the reorganization and for the preservation for the rights of all the stockholders. * * * Also, a minority of stockholders who seek equity should do equity, and a Court of Chancery has power in granting relief to prevent unjust enrichment of the minority stockholders at the expense of the majority." 14-A C.J., 1047.
"As a general rule, majority stockholders have no power to involve the minority in a reorganization without their consent, express or implied. But, where the reorganization has been carried into effect, equity will not interfere unless the complainant shows that he has suffered substantial injury and has not been guilty of laches or acquiescence." 14 C.J., 833.
"While a minority of the stockholders of a corporation may maintain a bill for fraud, conspiracy or acts ultra vires when they have been injured or damaged by such acts, they must act promptly and not wait an unreasonable time." 7 R.C.L., 721.
The matter here was clearly within the power of the meeting. No change in the business or the manner of its conduct was involved. The petitioner has not shown injury. She has not acted promptly. She has been guilty of laches. The others acted in good faith for the preservation of the rights of all. Petitioner may not be unjustly enriched at their expense.
Petitioner knew the condition of the mill. She knew that it was useless to call her stock until after a sufficient number had surrendered the advantage she claims to make hers a solvent claim. She allowed the plan to be put into effect. She remained silent. She acquiesced for four months.
"If one remains silent where in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent." Smith v. Williams, 141 S.C. 265, 282, 139 S.E., 625, 630, 54 A.L.R., 964.
"It is a general rule of law, as well as of good morals and fair dealing, that if a party is silent when he should speak, or supine when he should act, he will not afterwards be permitted to either speak when he should be silent, or to act when he failed to do so at the first proper and opportune moment. * * * 'Silence always implies consent,' says another cardinal maxim of the law." Hill v. Railroad Co., 143 N.C. 539, 55 S.E., 854, 856, 860, 9 L.R.A. (N.S.), 606.
For keeping silent when she should have spoken, for delaying for four months to act, at which time the others had already acted, the petitioner is effectively estopped to assert the demand here made, even though the predicate of her contention had not been destroyed by valid corporate action at the meeting of July 30, 1931.
Furthermore, since the surrendering stockholders were induced to that action by the representation that it would insure an extension of time to pay the mill's debts, and since that result failed to materialize, their attempted surrender of the right the petitioner asserts was the result of unintentional misrepresentation and wholly unsupported by any consideration. Therefore, the exchange was ineffective to reduce their standing in a Court of Equity below that of the petitioner. She shows no injury. They got no advantage. All must be "fed from the same spoon."
It is therefore ordered and adjudged that the petition be denied, and that the funds on hand be disbursed ratably to all preferred stockholders as of July 30, 1931, after such costs, fees, and expenses as the Court may allow have been paid. It appears that the exchanging stockholders received 1 1/10 shares of new preferred for each share of old, the 1/10 share being in payment of accrued and unpaid dividends. It would be inequitable for the holders of the new preferred to participate on a basis so broadened at the expense of those who did not exchange.
A short order was passed in the Julius T. Jennings case denying the relief sought and referring to the order in the Susan Williams King case for a detailed statement of the findings of law and fact. The separate orders passed on the Cleveland claims are as follows:
Petitioner seeks payment of $10,000.00 and interest out of funds in the hands of the Receivers for her 100 shares of the preferred stock of Arcadia Mills of the issue of July 1, 1923, of the par value of $100.00 each. Her claim is heard along with that of Mrs. Susan Williams King which has been disposed of in an order filed today reciting the facts and reasons leading to its rejection. At the same time, two petitions of Mr. R.B. Cleveland of like nature were heard, and an order has been filed today denying them.
Reference is made to the order filed on the King petition for a narrative of the facts and circumstances applying to her claim and equally to that of this petitioner. In addition to those facts and circumstances, the record conclusively shows that Mr. Cleveland was her proxy at the meeting of July 30, 1931, called to eliminate the provision in the old preferred stock upon which she predicates her claim, and, as such, voted her stock in favor of a resolution, moved by him and unanimously adopted, whereby the provision relied upon was eliminated. Reference is also made to the order denying the petitions of Mr. R.B. Cleveland, filed today, for a fuller statement and discussion of the facts and reasons, additional to those applying in the King case, upon which I have reached the conclusion that this petition must be denied.
It is therefore ordered that this petition be denied and the petitioner's claim for payment of her stock in full disallowed.
This petitioner has filed two petitions, one asking that the Receivers be ordered to pay him $1,600.00 with interest from July 23, 1932, for 16 shares of preferred stock of Arcadia Mills of the issue of January 1, 1920, of the par value of $100.00 each, and the other asking that they be required to pay him $10,000.00 and interest for 100 shares of the preferred stock of Arcadia Mills of the issue of July 1, 1923. These petitions were heard along with that of Mrs. Susan Williams King, and all the facts affecting her claim apply with equal force to these petitions. The petition of Mrs. King was denied in an order reciting the facts and giving the reasons for the conclusions, which has today been filed. It follows that these petitions must also be denied.
However, in addition to the facts, circumstances, and reasons upon which Mrs. King's petition was disallowed, there are additional facts affecting the status of this petitioner which much more conclusively establish his lack of standing in equity here.
He attended the meeting of July 30, 1931, called to eliminate the redemption feature from the preferred stock along with a clause to the effect that no mortgage would be made without retiring the preferred stock, and made the motion modifying the plan outlined in the notice to confer immediate voting power on the proposed new preferred, upon which the meeting acted unanimously and favorably, he voting for it along with all others. Notwithstanding the lead he took in the meeting called to effect the changes and his vote in favor of the changes, he failed to comply with the resolution adopted on his motion and did not exchange his stock. No other holders of preferred, so far as the record before me shows, except Mrs. R.B. Cleveland, who has filed a similar petition, ever knew of his later attempt to change his mind and to retain the right claimed here to collect in full for his stock to the diminution of the shares to be distributed to the holders of preferred who exchanged their stock in reliance upon the action of the meeting of July 30, 1931, taken upon his motion and voted for by him individually and as proxy for Mrs. R.B. Cleveland. It is to be remembered that Arcadia Mills and its common stockholders are not concerned in the issues made by these petitions and the objections of the Receivers. The question is between the petitioner, as the holder of preferred stock, which he moved, in a meeting called for that purpose to exchange for new preferred, and the holders of new preferred who surrendered their old stock exactly like his on the action taken at the meeting on his motion. A stronger case of estoppel, it seems to me, is not easily conceivable.
For the reasons given in the order denying the petition of Mrs. King filed today and the foregoing additional reasons, it is ordered that both petitions of R.B. Cleveland be denied and his claims for payment in full disallowed.
Messrs. Osborne Butler for appellant, Susan Williams King, cite: As to novation: 46 C.J., 573; 13 C.J., 597; 128 S.C. 434; 122 S.E., 868; 20 R.C.L., 360; 29 Cyc., 1130; 149 S.C. 386; 147 S.E., 449; 138 S.C. 10; 135 S.E., 646; 172 S.C. 531; 174 S.E., 473; 117 U.S. 434; 29 L.Ed., 963; 76 Fed., 38; 53 F.2d 751; 81 A.L.R., 133; 117 Pac., 1041; 28 S.C. 115; 5 S.E., 270; 13 Fed., 109. Estoppel and laches: 68 F.2d 323; 13 C.J., 615. Public policy: 29 A.L.R., 254; 185 N.C. 7; 115 S.E., 883. As to priority of preferred stockholders over creditors provided for by contract: 145 Ky., 634; 140 S.E., 1011; 39 L.R.A. (N.S.), 1007.
Messrs. J. Davis Kerr and Johnson Johnson, for appellants, R.B. Cleveland and Mrs. R.B. Cleveland, cite: Estoppel: 97 S.C. 116; 81 S.E., 478; 100 Va., 69; 40 S.E., 633; 60 A., 713; 70 L.R.A., 574; 146 N.W., 1077; 21 C.J., 1120; 42 S.C. 348; 20 S.E., 157; 96 S.C. 106; 79 S.E., 985.
Mr. Horace L. Bomar, for appellant, Julius T. Jennings, cites: As to notice of special meeting of officers of corporation: 179 S.E., 877; 14 C.J., 891; 156 S.C. 43.
Messrs. Perrin Tinsley, Nicholls, Wyche Russell and Lyles Daniel, for respondents, cite: As to unjust enrichment of minority stockholders at expense of majority: 14-A C.J., 1047; 14 C.J., 853; 7 R.C.L., 321, 339. Estoppel: 55 S.E., 854; 142 S.C. 282.
April 15, 1936. The opinion of the Court was delivered by
This case comes to this Court on appeal by the petitioners from the several orders issued by his Honor, Judge T.S. Sease, on the respective petitions, as set forth in the title of the case, In re Montgomery Crawford, Inc., etc., plaintiffs, v. Arcadia Mills, defendant. In this connection we quote the following agreed statement of counsel, appearing in the transcript of record, for the purpose of showing the history of the case:
"Arcadia Mills, a textile corporation, organized under the laws of the State of South Carolina and maintaining a large plant in Spartanburg County, was placed in the hands of the respondents, as receivers, by order of the Court of Common Pleas for Spartanburg County on January 2, 1933. Upon appeal, the receivership was affirmed by this Court and the assets of the corporation ordered to be sold by the Receivers, and pursuant to such order of this Court all of the assets were sold on November 14, 1934, for a total purchase price of $736,000.00. Arcadia Mills had outstanding common stock of $200,000.00 and 7 per cent. preferred stock, of which $200,000.00 was issued in 1920 and $600,000.00 was issued in 1923, both issues being pursuant to resolutions of the stockholders of the corporation and containing such privileges and preferences as will hereinafter appear. The appellant, Susan Williams King, was a holder of forty (40) shares of the 1923 issue of preferred stock, and the appellant, Julius T. Jennings, was the owner of fifty (50) shares of the 1920 issue. The appellant, Julius T. Jennings, gave notice on the ___ day of December, 1930, of his intention to require the payment of the said stock, and on November 30, 1930, the appellant, Susan Williams King, gave like notice to the then management of the mill. On July 30, 1931, a call meeting, pursuant to notice sent to all stockholders, was held at the office of the corporation for the purpose of considering certain changes, which will more fully appear hereinafter. Neither of the appellants, Susan Williams King or Julius T. Jennings, attended the meeting in person or by proxy.
"The appellant, R.B. Cleveland, was the holder of 116 shares of the preferred certificates, consisting of 16 shares of the issue of 1920 and 100 shares of the issue of 1923. The appellant, Mrs. R.B. Cleveland, was the holder of 100 shares of the preferred issue of 1923. R.B. Cleveland gave notice on July 23, 1931, of demand for payment of his 16 shares of the issue of 1920, and on January 4, 1932, gave notice of demand for payment of his 100 shares of the issue of 1923. Mrs. R.B. Cleveland gave notice of her demand for payment of her 100 shares of the issue of 1923 on January 4, 1932. Upon failure to receive payment of the certificates as demanded, petitions were filed by the appellants, R.B. Cleveland and Mrs. R.B. Cleveland, praying for payment of their respective claims in full, upon which rules to show cause were issued directed to the Receivers and requiring them to show cause why the said Cleveland appellants' claims should not be paid in full out of the funds then in the hands of the Receivers. In response to the rules to show cause, the Receivers filed a written return and upon the Cleveland petitions, return reply filed by the Cleveland appellants, and certain records and exhibits, the matter came on for hearing before Judge Sease, who, after argument, filed orders denying the claims to priority of payment asserted by the Cleveland appellants. From the orders of Judge Sease passed in the matter, the appellants, R.B. Cleveland and Mrs. R.B. Cleveland, following notice of intention to appeal duly given, appealed to the Supreme Court.
"Appellants, Susan Williams King and Julius T. Jennings, both filed claims with the Master for Spartanburg County as required by the order of receivership, and within the time therein required, asserting the claim that they were entitled to be paid in full the amount of their certificates before the payment of any other claims against Arcadia Mills, except contract creditors. Upon refusal of the Receivers to pay the appellants in full the face of their certificates with interest, petitions were filed on the basis of which a rule to show cause was issued directed to the Receivers requiring them to show cause why the appellants should not be paid in full, after the payment only of obligations of the mill to contract creditors. In response to this rule, the Receivers made written return and upon the basis of the petition, return, stipulation of counsel and certain records, the matter came for hearing before Judge Sease at chambers, who, after argument, filed an order denying the claims to priority asserted by the appellants and holding that all preferred stockholders share equally. It is from this order that this appeal is taken. Notice of intention to appeal was given within the time prescribed by law by each appellant.
"All judgment creditors and contract creditors of Arcadia have been paid, and since the filing of the order appealed from, by order of the Court of Common Pleas a 10 per cent. dividend has been paid to all preferred stockholders, except those who asserted claims to priorities. It is agreed that there are sufficient funds on hand to pay appellants' claims in full if their contentions be sustained."
It appears from the record that the matters involved in the cause were heard before Judge Sease on a stipulation by counsel and certain exhibits which presented to his Honor no disputed matters of fact. The matters involved were discussed at length in the order issued on the petition of the appellant, Susan Williams King, and in disposing of the other petitions his Honor, Judge Sease, made reference to the order issued on the petition of Susan Williams King and the conclusions therein stated, and, therefore, did not discuss the matters at length in the orders on the other petitions.
For the reasons set forth in the several orders issued by his Honor, Judge Sease, in the cause, in passing upon the said petitions and disposing of the same, the said orders are hereby affirmed and made the judgment of this Court.
NOTE: There will be incorporated in the report of the case the several orders of his Honor, Judge Sease, dated May 9, 1935, and appealed from herein.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.