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MILLER v. TULSA PETROLEUM CO.

December 22, 1953

MILLER
v.
TULSA PETROLEUM CO. et al.



The opinion of the court was delivered by: MURPHY

Tulsa Oil Company, a New Jersey corporation, and Tulsa Petroleum Company, a Delaware corporation, move to dismiss plaintiff's action; the former alleging it was not subject to or properly served with process in this district; *fn1" the latter, failure to state a claim upon which relief may be granted.

In disposing of such a motion we must consider as true all well plead allegations of the complaint including the exhibits; but not conclusions of law or unwarranted deductions of fact; viewing them in the light most favorable to the plaintiff, resolving all doubts in favor of sufficiency, Solomon v. Neisner Bros., D.C., 93 F.Supp. 310, affirmed, 3 Cir., 187 F.2d 735, realizing always of course that we are a court of limited jurisdiction.

 The problem arose as follows:

 December 30, 1946, plaintiff and Tulsa Petroleum Company by Max Friedman, its president, agreed *fn2" (plaintiff's Exhibit B) at the latter's office in Scranton, Pennsylvania, that a New Jersey corporation be formed to operate gasoline service stations in that state; and that they would convey their respective real estate holdings in New Jersey *fn3" to the new corporation. *fn4" In return therefor the agreement *fn5" provided inter alia:

 'The Millers are to receive a 10% interest in the new corporation, and will receive a first mortgage.

 'Tulsa Petroleum Company will turn over all of their real estate holdings and will take a chattel mortgage for their holdings.' *fn6"

 Plaintiff was to receive a check for $ 7,000 'and other consideration' to make up 10% of the amount due under the Smith option, *fn7" the balance to be paid over a 15 year period in installments commencing January 1, 1948. *fn8"

 January 6, 1947, Tulsa Petroleum Company caused Tulsa Oil Company to be organized. *fn9" Plaintiff alleges that next day he conveyed $ 81,797.58 in assets to the new company; that Tulsa Petroleum Company conveyed its interest in the East Orange property ($ 9,754.32) *fn10" and cancelled and released its $ 12,606.66 mortgage against plaintiff's property.

 As payment for their respective conveyances each party received forthwith a one-half interest (i.e., $ 67,150.49) in a $ 134,300.98 duly recorded purchase money mortgage. April 24, 1947, plaintiff received 10 shares fully paid of Tulsa Oil Company stock. *fn11"

 Plaintiff contends that he was to receive a 10% interest in the company, fully paid; that there is therefore a deficiency of 90 shares. Further that the mortgage should be reformed to comply with the agreement so as to reflect the proper interest of each party therein, in accordance with their respective contributions; that defendants should account for all payments made on the mortgage. *fn12"

 Asserting that Tulsa Petroleum Company controls 70% of the Tulsa Oil Company stock, 'a closed corporation', the stock of which is not available on the open market, plaintiff seeks a decree of specific performance of the agreement; to enjoin Tulsa Petroleum Company from transferring or hypothecating any of the shares of Tulsa Oil Company, and that it be declared a trustee of 90 shares thereof on plaintiff's behalf; that Tulsa Oil Company be enjoined from issuing or transferring any unissued or authorized stock until plaintiff receives his 90 shares. In lieu of specific performance plaintiff seeks judgment against both defendants.

 Apart from what the ultimate outcome as to the facts may be, plaintiff pleads an agreement with Tulsa Petroleum Company; that the latter did not comply therewith to his detriment. He has a right, if the trier of the facts believes his version, to have the contract enforced in this court insofar as this court may be able to do so. We do not stop to cite the individual cases. We refer at present only to Fletcher Cyclopedia Corporations, Permanent Ed., Vol. 1, ┬ž 191, and cases cited.

 The request for a more definite statement will be denied. See our opinion in Metropolis Bending Co. v. Brandwen, D.C., 8 F.R.D. 296, and cases cited.

 Having accepted the benefits, Tulsa Oil Company must assume the corresponding burdens. See H. Horowitz, Inc., v. Weehawken Trust & Title Co., 1932, 159 A. 384, at pages 385-386, 10 N.J.Misc. 417; Sharon Herald Co. v. Granger, D.C., 97 F.Supp. 295, at page 301; Girard v. Case Bros. Cutlery Co., 225 Pa. 327, 74 A. 201; Central Trust Co. of Pittsburg v. ...


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