inventories of materials and supplies at cost or market in addition to the price of the plant, retention by the corporation of accounts receivable and inventories of finished goods, and an agreement by National Gypsum to sell to the corporation one third of the output of the plant over a three-year period, during which time the corporation was to have the use of one of the buildings for a dollar a year. The agreement was signed by Leon Slavin in his capacity as Executive Vice President of Western.
On March 18, 1946, the Slavins purchased all the stock of the Kardons in the two corporations, Western and Michigan, for $ 504,000. At that time the Kardons knew nothing whatever about the negotiations with National Gypsum, and the Slavins did not disclose any of the facts relating to them although admittedly, at the meeting at which the sale of the stock was consummated, Leon Slavin, in answer to a preliminary question by the Kardons' attorney, whether he had made any agreement for the sale of the stock, answered No.
Having acquired the plaintiffs' stock, the Slavins proceeded to consummate the transaction with National Gypsum. On March 23, a formal contract of sale was executed in which the Slavins themselves, rather than the corporation, appeared as the sellers and which substantially incorporated the terms of the preliminary agreement. Finally in February of 1947, the Slavins, having themselves acquired title from the corporation, conveyed the property to National Gypsum. The Slavins thus obtained $ 1,500,000, plus whatever other sums they were paid under the agreement and subject to diminution in such amount as may be necessary to meet any unliquidated income tax liability.
Turning now to the remedy. In essence, the transaction is a sale by directors, in their own interest, of corporate assets, otherwise than in the course of business and without disclosure to stockholders. The plant and equipment belonged to the corporation, and the Slavins were acting for the corporation at the time when Leon Slavin executed the preliminary agreement. The fact that the actual conveyance was by them as individuals and the fact that it was not made until they had acquired all the outstanding stock are immaterial. In dealing with cases of this kind the law disregards forms and looks at the substance. In Dunnett v. Arn, 10 Cir., 71 F.2d 912, 919, two directors of a corporation in order to assist another company to acquire the assets of their corporation sold their own stock at one price and then sent a telegram to the other stockholders, recommending that they sell their stock at a lower figure, without disclosing their own advantageous sale. By this means the purchasing company acquired all the capital stock. It then proceeded to absorb the old corporation and so acquire its assets although the only actual transfer was of the capital stock of the company. The Court said, 'The transaction, * * * while in form a sale of stock, in substance and effect was a sale of the assets of the Operators Company to the Sunray Company, and a corporate act * * * '. The method adopted by the defendants in Dunnett v. Arn, supra, was not the same as that of the defendants in the present case, but the underlying principles of the two cases are identical, and I consider the decision as fully justifying the view that the transaction in the present case was in reality a sale of corporate assets. This being so, the Slavins are in no different or better position than if they had adopted the conventional technique of arranging for a secret bonus from the purchaser for their part in a straight sale of the corporation's assets.
The defendants now contend that the plaintiffs are not entitled to a decree because they have not proved that the defendants made any profit out of the transaction.
It is not necessary that they do so. The plaintiffs' case was established when the defendants' duty and its breach were proved. This was done by showing that the defendants were officers and directors of Western and that they disposed of the bulk of the corporate assets to an outsider, for their own benefit, without disclosing the transaction to the plaintiffs or giving them an opportunity to participate in it. The remedy follows, which, in this case, is an accounting to ascertain and restore to the plaintiffs their proportionate share of the profits, if any
The substance of the Slavins' argument is that they are trustees only as to the profits and that unless the plaintiffs show the existence of profits there is nothing to which a trust can attach and their action consequently fails. The argument is a legalistic one at best and there is no reason for the Court to adopt it, especially in aid of a trustee who has dealt with trust property for his own benefit or to open a new avenue of escape for such a trustee from the plain obligation which the law puts upon him to account for what he has done. The trust res in this case was the corporate assets, not the profits, and when the assets were disposed of by an undisclosed contract of sale the cause of action was complete. Certainly the plaintiffs could have elected to ask for rescission of the transfer and if they had it can hardly be argued that it would have been essential to their case to show that the defendants realized any profit from the deal.
If the plaintiffs' cause of action were solely for common law deceit they would of course have to prove a loss as part of their case, the measure of which would be the difference between the value of their stock at the time they parted with it and the amount the defendants paid for it; and the defendants' profits would be admissible, but not conclusive evidence upon that issue. There are many decisions to this effect, and the rule is not questioned. They have no application, however, in a case in which the action is not for damages for deceit but is for a share of the profits of the transaction.
In order that what has been said may be understood in its proper frame, it might be well to repeat that this action is grounded upon a violation of the Securities and Exchange Act of 1934. The Act does no more than forbid certain types of conduct, which it defines in general terms, in connection with the purchase of securities. It does not even provide in express terms for a remedy, although the existence of a remedy is implicit under general principles of the law. Perhaps all that would be necessary for this decision would be the determination that the conduct of the defendants came within the terms of the Act and the remedy sought is one provided by the law for redress. However, the broad terms of the Act are to be made effective in a case like the present one through application of well known and well established equitable principles governing fiduciary relationships. These principles are fundamental in all jurisdictions and the decisions of both Pennsylvania and of Michigan fully support the conclusions reached above.
A stipulation filed of record in this case May 12, 1947, withdraws every allegation in the complaint pertaining to any alleged wrongdoing by National Gypsum Co. and likewise deletes from the prayer for relief a request that National Gypsum Co. account to the plaintiffs. Therefore, the word 'defendants' as used in this opinion is to be understood as referring to the Slavins. However, National Gypsum Co. having, by stipulation, agreed to abide by any lawful decree of the Court affecting it, its motion to dismiss is denied.
The statements of fact contained in this opinion may be taken as special findings of fact and the statements of law as conclusions of law.
Conclusion of Law.
The plaintiffs are entitled to a decree against the defendants for an accounting as prayed for in the complaint.
A decree may be submitted in accordance with this opinion including an order for the appointment of a master to conduct an accounting.