Opinion
Docket No. 1,101.
Decided July 12, 1966. Rehearing denied September 2, 1966. Leave to appeal denied by Supreme Court November 23, 1966. See 378 Mich. 741.
Appeal from Wayne; Bowles (George E.), J. Submitted Division 1 June 1, 1966, at Detroit. (Docket No. 1,101.) Decided July 12, 1966. Rehearing denied September 2, 1966. Leave to appeal denied by Supreme Court November 23, 1966. See 378 Mich. 741.
Complaint by Benjamin J. Poss as a minority stockholder against Rossen-Poss Agency, Inc., a Michigan corporation, now known as N.P. Corporation for the appointment of appraisers to set a value on his corporate shares. Trial court appointed appraisers, and denied defendant's motion to vacate the appointments and motion for rehearing. Defendant appeals. Affirmed.
Max M. Marston, for plaintiff.
Sugar Schwartz ( Lawrence Warren, of counsel), for defendant.
Defendant appeals from an order of Wayne county circuit court appointing appraisers pursuant to CL 1948, § 450.44 (Stat Ann 1963 Rev § 21.44) and from denial of defendant's motion to vacate said order and for rehearing. The statute involved governs rights of corporate shareholders objecting to corporate authorization of sale, lease, or exchange of all or substantially all of the corporate assets and provides a method for them to obtain the value of their shares in case they and the corporation fail to agree on such value.
To be entitled to the statutory relief, plaintiff must show full and complete compliance with the terms of the statute. Pollack v. Adwood Corporation (1948), 321 Mich. 93. The only issue raised on this appeal is the adequacy of the record to support the finding by the trial court that plaintiff was a shareholder at the time of the authorization above referred to. (The first condition imposed by the statute.) Statutory procedure for seeking relief is by petition and order to show cause indicating the proceeding is in chancery. (See Pollack, supra.) This calls for review de novo, Cullum v. Topps-Stillman's, Inc. (1965), 1 Mich. App. 92, but reversal is not made unless this Court is convinced from a reading of the entire record that it would have reached a different conclusion. Michigan Central Park Association v. Roscommon County Road Commission (1966), 2 Mich. App. 192.
The corporate records showed stock registered in plaintiff's name, but defendant contends the same records indicate this stock was paid for with corporate funds, and since there was no consideration flowing from plaintiff for the shares registered to him, he was not a shareholder. That such proof does not necessarily disprove purchase of the shares by plaintiff see Davidson v. American Paper Manufacturing Company (1937), 188 La. 69 ( 175 So. 753). Plaintiff testified that the payments relied on by defendant to show plaintiff's stock was purchased with corporate funds were charged against his corporate account, and other documentary evidence indicated plaintiff was a shareholder. On such a record this Court is not able to say it would have reached a conclusion different than the trial judge.
Plaintiff attached to his reply to new matter contained in defendant's answer an executed but unconsummated agreement between the parties hereto. On appeal, defendant seeks to use part of such agreement to show plaintiff was not a shareholder as required by the statute. This was not an issue before the trial court, even though plaintiff filed an amended answer after the reply. We do not discuss issues raised for the first time on appeal. Baker Contractor, Inc., v. Chris Nelsen Son, Inc. (1965), 1 Mich. App. 450.
Affirmed, with costs to appellee.
J.H. GILLIS, P.J., and FITZGERALD, J., concurred.