| Show ELLERBECK HDGLEY UIT The Answer and Cross Complaint of Defendants i VERY STRONG ALLEGATIONS COXSPIKED TO RUN THE COMPAXY IX HIS OWN INTEREST Ane ell That CHcrbcclc Came Wild with Rage ami Threatened to Kill Any of the Directors Who At temiitcd to Open the Safe Touch the Books or Interfere with HI nil n-il His Exclusive Control of the Affairs of the Coiuimiiy The defendants by their attorney J H ZMoyle filed their answer and rosscomplaint yesterday in the important im-portant suit of B M Ellerbeck vs John G Midgley John W Farrell L S Austin and Harry Green I is denied in the answer that D V James was ever or is now a director direc-tor of the Utah Plumbing Supply om any but it is admitted tlikt he was elected a director of said corporation but at is alleged that he wa never eligible toi the office and that he did not and could not qualify as a dilrec tor for the reason that he is not and never was a stockholder of said company com-pany l is denied that the defendants entered into a conspiracy for the purpose pur-pose of preventing the plaintiff from having control of Sid corporation by reason of his ownership of 880 shares or any other number of shares of the capital stock I is also denied that the defendants conspired to wrongfully fully issue to John R Winder jr 200 or amy number of shares of stock of l the corporation for the purpose of giv < i ing John G Midgley and ilscodef end ants the control of the corporation Every material allegation of the complaint com-plaint is taken up seriaturm and e L 1 Cross Complaint r For further answer and by way of crosscomplaint the defendants allege tlat it has been one of the chief objects ob-jects of the corporation to manufacture manufac-ture led pipe and to own and operate a plant for such manufacture and that the matter has been discussed by these defendants who have endeavored en-deavored on many occasions prlon t the present to sell sufficient of the treasury stock to raise the means with which to establish the manufacture of lea pipe but all of sad efforts except ex-cept that of which the plaintiff complains com-plains have failed for the want of purchasers pur-chasers of the treasury stock The market price of the stock having materially ma-terially advanced during the past two months the directors considered the present an opportune time to sell sufli stock to enable lent of the treasury stck them to establish the lead pipe manufactory manu-factory At a directors meeting held on January Jan-uary 4 1895 at which the defendants I Flarrell ondi Austin were present Midgley Fei fndl Austn were re resolution passed authoriz was ent a TesutiOI pfser authDrz ing the president It sell 200 shares of such stock immediately to the highest bidder and in the presence of the stockholders John G Midgley as president Pres-ident offered said shares for which the plaintiff Elletfbeck iwas a bidder and John R Winder jr was the highest high-est bidder offering finally 1090 per share which was accepted and Winder immediately paid for same cnd certificate cer-tificate was issued to him signed by John G ilidgley a president and John WFarrell as director Horace S Ellerbeck the secretary refused to sign the certificate k > r produce the seal of the corporation or otherwise obey the orders of the directors whereupon said directors authprized the president to purchase a new seal and attach the same to Winders stock certificate all of which the president did It ds further alleged that at a meeting meet-ing of the directors held January 5 1895 at which the plaintiff was present D W James was by resolution removed re-moved from the directorate for the reason that he was not a stockholder and immediately thereafter the board filled the vacancy < by appointing Henry Green and that at the said meeting the plaintiff was removed a manager of the corporation for misconduct in discharge of his duties I is alleged that Plantf was guilty of gross misconduct mIs-conduct in the management of the business of the corporation that he refused re-fused to submit ito the control of the directors arid openly avowed his intention in-tention to disregard their orders ant that John G Jlidgley was appointee manager I is further alleged that ithe plaintiff plain-tiff Ellerbeck wrongfully and fore ibly resisted interrupted and In every way tried 10 prevent Midgley from acting and performing Ms duties acUng penormin dutes as manager that the charge of consplr acy made by the plaintiff is absolute false and groundless and that said charges axe mad and the action brought for the sole purpose of fraudulently frau-dulently and dishonestly preventing the directors of the corporation from doing their duty ana from carrying out one of > the chief objects of the incorporation incorpora-tion and to enable plaintiff to prevent the stockholders from electing officers mho would seek to carry out the objects ob-jects for which the corporation was formed and that if the injunction is granted or the temporary restraining order allowed to stand until after the annual stockholders meeting the plaintiff and his aiders Horace S El lerbeck Thomas R Ellerbeck and Charles E Beers will prevent a majority ma-jority of the stockholders from electing elect-ing such officers as they desire and will < work a gross injustice and great hardship t them and irreparable damage dam-age to the corporation It is alleged that the sale of stock to Winder was made in good faith and that he plaintiff as a stockholder or otherwise is not injured thereby I Conspiracy Alleged Thten i is set up that the plaintiff with Horlace S EMerbeck Thomas R Ellerbeck and others ihave unlawfully conspired t gain control of said corporation cor-poration so as to operate it in their ow interest and against the interest of the stockholders that when the directors met and ordered the sale of the 200 shares of stock shre plaintiff became be-came wild with rage stood before the safe in which the books and papers were kept and flourished an iron poker and d cared Die would kill the directors or any of them if they should attempt to open the safe or touch the books or interefere with him 1n Ms exclusive control of the affairs of the corporation That the plaintiff disregarding disre-garding the orders of the directors has continued to pay out moneys of the company and to issue checks without the signature of the president and will continue O do so unless restrained that Horace S ELlerbeck has been removed re-moved from the position of bookkeeper by the directors and his place filled by William H Wallace but that said Horace S Ellerbeck acting in aId of the plaintiff and1 under his linstruo itSons1 refuses the directors access to the books and papers of th > 2 company or even the privilege of inspecting the ame Wherefore the defendants pray that ie plaintiff take nothing by his action tion that he be restrained from paying out the moneys of the corporation or I issuing checks of the company without the written approval of the president I that he be restrained from managing the business of the corporation that he be enjoined from interfering with the stockholders or directors in inspecting the books of the company and from keeping the books out of the safe and from preventing William H Wallace from performing his duties as bookkeeper book-keeper and that he be restrained jom voting his stock in the corporation until un-til after a hearing has been had on his pplication for an injunction |
