State ex rel. v. Reynolds. reached here, as to the right of our courts to supervise exists under the condiOn the contrary, these They decide, not that a foreign corporation where it tions of the respondent herein. cases support our conclusion. a foreign corporation as such, is exempt from the supervision of our courts, but that it is so by reason of the place of its residence, location of its property, and general conduct of its business. Where these three conditions are found to exist so as to render the enforcement of a judgment impossible, then supervision is held to be unauthorized. Elsewhere, the rule is announced under like limitations, viz., that the right of supervision by the courts will not be exercised over a foreign corporation where the location of its officers, property and accounts are without the State, and the orders and decrees of the courts cannot, as a consequence, be enforced. [Sauerbrunn v. Hartford Life Ins. Co., 220 N. Y. 363, and cases cited p. 372; Eberhard v. Northwestern Mut. Life Ins. Co., 210 Fed. 520. and cases cited, pp. 522 & 523.1 The right of a court of equity to appoint a receiver for, and otherwise supervise the affairs of a foreign corporation, is elabotately discussed with the citation. of many cases in the report of Low v. R. P. K. Pres. Met. Co., 91 Conn. 91, in L. R. A., 1917D, pp. 291-306. There is a contrariety of conclusions in regard to subordinate matters in these cases, but the general doctrine, in harmony with that announced herein, prevails. While independently of statute a court of equity has power to entertain a bill against a domestic and, in accord with our rulings, a foreign corporation as well, under the facts in the instant case (Cantwell v. Lead Co., 199 Mo. 1; Thompson v. Greeley, 107 Mo. 577; Greeley v. Bank, 103 Mo. 212; Cox v. Volkert, 86 Mo. 505), we are not without legislative authority in that behalf. Under Section 3037, Revised Statutes 1909, foreign corporations doing business here are subjected to all of the liabilities, restrictions, and duties of corpora State ex rel. v. Reynolds. tions of like character organized under the laws of this State. Section 3038, Revised Statutes 1909, provides explicitly that receivers may be appointed to take charge of the business, property and effects of foreign corporations, etc.; the powers granted to the receiver being similar, if not identical, to those conferred upon receivers of domestic corporations. There is, therefore, under the pleadings and facts, no question as to the power of a court of equity to take cognizance of this case. IV. It is contended that there was no notice of the application for temporary injunctive relief, and Notice. the appointment of a receiver. The proceed ing here was not to stay a judgment within the contemplation of Sections 2517 and 2518, Revised Statutes 1909. While notice of applications in cases of this character is usually required; where, as in this case, the need is a crying one, notice is not held to be a prerequisite (State ex rel. v. McQuillin, 256 Mo. 1. c. 707; Tuttle v. Blow, 176 Mo. 1. c. 171). Equity has never prescribed the necessity of giving notice as a condition precedent in all cases of the granting of temporary injunctions, [State ex rel. v. Woodside, 254 Mo. 1. c. 592.] V. Notwithstanding our conclusion as to the sufficiency of the bill as a whole, we have considered respondents' special contentions in regard to the lack of certain averments, regardless of the fact that the complete lack of jurisdiction of the Court of Appeals may render these contentions beside the case. Respondents insist, with that technical minuteness characterized by an argument in support of a demurrer, that the bill is insufficient in failing to embrace the necessary allegations to sustain an order for an accounting. The established rule is that courts liberally construe pleadings for accountings, and when the allegations in regard thereto substantially make out a case this will suffice. [1 Enc. Pl. & Pr., p. 97, note 2.] State ex rel. v. Reynolds. Moreover, we have frequently ruled that pleadings generally should be given such an interpretation as fairly appears to have been intended by the pleader. [Hickory Co. v. Fugate, 143 Mo. 1. c. 79; Davis v. Jacksonville So. Line, 126 Mo. 1. c. 78; Stillwell v. Hamm, 97 Mo. 579.1 Furthermore, the bill must be interpreted by employing in its aid all reasonable inferences from the facts stated and all implications and intendments which its terms will afford, in support of any relief competent for the court to grant. [Thomasson v. Mer. Town Mut. Ins. Co., 217 Mo. 485; People's Bank v. Scalzo, 127 Mo. 164; Salmon Falls Bank v. Leyser, 116 Mo. 51.] The charge in the bill that Burgess, a director and president of the corporation, purchased 300 shares of the stock of the company from Sterns for the use of the company, at $40 per share, and resold 100 of such shares to one Meyer, at $60 per share, at a profit to himself of $2000, for which he should account to the company, is a plain and specific charge for an accounting, even good as against a demurrer. In addition, there is the charge in the bill that Burgess and his co-defendant directors, co-operating, purchased a calendar for the company at $17,500 and then caused entries to be made on the books showing an expenditure of $22,000 on that account. This will authorize an accounting, because in the concluding paragraph of the bill, prefatory to a prayer for general relief, an accounting is called for on all of the charges of fraud and waste theretofore specifically pleaded. This bill is in nowise similar to that considered by this court in Albers v. Moffitt, 262 Mo. 645. There were no data set out in that case on which an accounting might be based. There is in the case at bar. But even though no accounting can be had on the bill save on the $2000 item alone, it is nevertheless sufficient, for it seeks to remove Burgess, the president, from his office as director, on an allegation that he Lawson v. Cunningham. draws an exhorbitant salary of $10,000 a year, which constitutes, as alleged, a wasteful expenditure of the funds of the company. This alone, apart from the other allegations in the bill, serves to fix the jurisdiction and supervisory control of this court. Our conclusion is that the preliminary rule in prohibition issued by this court should be made absolute, and it is so ordered. Bond, C. J., Graves and Woodson, JJ., concur; Faris and Williams, JJ., concur in result, and Blair, J., concurs in paragraph 1 and result. MARY SHIELDS LAWSON and FRANK H. SHIELDS, Appellants, v. SUSAN B. CUNNING- In Banc, June 28, 1918. 1. TRUST ESTATE: Power of Trustee to Invest, Sell and Reinvest. A clause of a will read: "I devise to my son J. H. Field, as trustee for my daughter Lucy B. Shields, ten thousand dollars, which I wish him to invest in some safe stock, or in any way he may think best, and to pay over for the use of my daughter Lucy, the yearly profits, which it may produce, but the principal to remain for the use of her children; in case my daughter Lucy dies leaving no children, the money to return and be equally divided between my sons." Held, that this language conferred upon the trustee power to invest, sell and reinvest, in personal or real estate; and when the trustee invested the fund in land, by a conveyance which named him as grantee and as trustee for the uses and purposes in the clause mentioned, a life estate in Lucy and remainder in the chilren was not so created that the trustee could not thereafter sell the land and invest the fund in other property. The power to sell and reinvest was not exhausted by the one investment in land. 2. : Ultra Vires: Cure. Even if it be conceded that, under said clause of the will, the trustee had no power to buy land, yet any subsequent act by which the wrong was righted and the trust fund returned intact into his hands was warranted and legally unobjectionable. 3.- -: Substituted Trustee: Power to Sell Trust Land: Estoppel. The cestuis que trustent, who, with actual notice, or with knowledge Lawson v. Cunningham. of facts demanding inquiry, have accepted the proceeds of a sale of land by a substituted trustee, have solemnly receipted to him for the full amount of the trust fund and have enjoyed and retain the fruits of such sale, cannot be heard in a court of conscience to say that the substitued trustee, under a clause of a will giving the original trustee power to invest the trust fund in real estate, had no power to sell the land, or that the court of the foreign State appointing him had no power to approve his sale of Missouri land; and whether such doctrine of preclusion be designated as quasiestoppel or is more nearly akin to ratification or election, the result is the same-they cannot, under such circumstances, recover the land. Held, by BOND, C. J., dissenting, with whom BLAIR and WIL LIAMS, JJ., concur, that the facts of the case do not show that the minor cestuis que trustent shared in the proceeds of the sale of the trust property by the substituted trustee, or that they had notice that when it was sold the proceeds were invested in other real estate the purchase price of which, when it was sold, was divided among them, nor do they show that it was so invested, and consequently the doctrine of quasiestoppel does not apply to them. Appeal from Boone Circuit Court.-Hon. Samuel Davis, Special Judge. AFFIRMED. Finley & Sapp and Frank G. Harris for appellants. (1) The will created a trust fund during the life of Lucy B. Shields, in which her children took a contingent remainder. West v. Bailey, 196 Mo. 517; Wood v. Kice, 103 Mo. 329; Luquire v. Lee, 121 Ga. 624. (2) Under such a trust the trust property cannot be diverted from the objects named by the donor, and neither the trustee, nor Lucy B. Shields, nor both together, nor a court, had power to convey the property and defeat the rights of the remaindermen therein. Sampson v. Mitchell, 125 Mo. 217; West v. Bailey, 196 Mo. 517; Arnold v. Brockenbrough, 29 Mo. App. 625. (3) There is no express power of sale given the trustee, and even if it be granted that he had an implied power of sale, it was personal to J. H. Field and did not survive to a substituted trustee. Gamble 275 Mo-9 |