Though a majority vote of the committee necessarily had to govern in its deliberations, if any progress was to be made, this should not be carried so far as to permit the majority to deprive the minority of any compensation. Thus, unless the minority consented to such a method of division of compensation, it cannot govern. In this instance, the petitioner did not so consent.
If consonant with equity, the determination of the majority could be left undisturbed. However, it is my conclusion that the instant division was not equitable. Therefore, I am decided that the petitioner is entitled to a determination by this Court of his proper share.
The petitioner's presence on the committee, in itself, served to enable the committee to gain support among the numerous bondholders in his community. This was an admitted reason for his selection, along with the reason that his prominent public position was indicated on the committee's letterheads. During the life of the committee the petitioner devoted himself to attendance at a majority of the meetings, to study of and frequent consultation over its business, and to executing certain other tasks in furtherance of the committee's work as heretofore set forth.
The chairman's services patently were far greater than those of the others. They required much more of his time, demanded more continual concentration on committee affairs, and consequently detracted considerably from his devotion to his own business.
According to the evidence, the other members of the committee, with the exception of Wieder, the secretary, did not perform more than perfunctory service. Woodruff, who resided in Georgia, did not attend a single meeting of the committee, did not concern himself particularly with the committee's work and assisted but slightly in efforts to gain support for the committee. MacNair attended several of the meetings and was consulted frequently as to his position on various committee matters. Nothing further appears relative to his services. Wieder, the secretary, handled the routine correspondence of the committee, kept a general record of its deliberations, and participated in its meetings. The considerable disparity between his share of the compensation and those of Del Mar and MacNair is not justified by the evidence.
In light of the evidence, reason and conscience require the conclusion that the share allotted to the petitioner was insufficient. I am decided that he was not required to accept the division made by the majority and that the chairman was not warranted in making a distribution as he did.
Petitioner did not lull the chairman and the other members into a sense of security. He immediately professed dissatisfaction with the share allotted him and has not indicated any change in his attitude concerning the same. Bernhard, in distributing the balance of the compensation, acted with full knowledge that the petitioner was not in accord with the determination made by Bernhard and Wieder and later approved by MacNair and Woodruff.
The petitioner is entitled to a payment of four thousand dollars from Arnold Bernhard.
Conclusions of Law.
1. This court has jurisdiction and the discretionary power to determine and decree an equitable distribution of the compensation awarded by it.
2. The majority of the committee was not authorized to determine the division of the compensation.
3. The petitioner is entitled to a share of the compensation commensurate with his contribution to the services for which the compensation was awarded to the committee.
4. Determination of proper division of compensation is dependent upon contributions of judgment, experience, prestige, and other factors, as well as time devoted to the committee's work.
5. The division of compensation decided upon by the committee's majority is inequitable.
6. The chairman was not warranted in distributing the compensation against the objection of the petitioner.
7. The petitioner is not barred from obtaining relief by his failure heretofore to institute judicial proceedings.
8. The petitioner is entitled to a payment of four thousand dollars from Arnold Bernhard.
9. The costs shall be divided between Arnold Bernhard and the petitioner.
The requested findings of fact and conclusions of law are affirmed insofar as consistent therewith and denied insofar as inconsistent herewith.
In making the above findings of fact and conclusions of law I am not ordering a redistribution of the fund nor determining whether the other three members of the committee received an equitable share. The only question before the Court was to determine to what portion of the $30,000 the petitioner Del Mar is equitably entitled. Since Bernhard, the chairman, received the full $30,000, I directed that he should pay the $4,000 to the petitioner. If the petitioner is unable to collect any portion of this from Bernhard, I will determine the responsibility, if any, of the Baldwin Company.
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