(DOWNLOAD) "Rubens v. Marion-Washington Realty" by In Banc No. 17319 Appellate Court of Indiana ~ eBook PDF Kindle ePub Free

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eBook details

• Title: Rubens v. Marion-Washington Realty
• Author : In Banc No. 17319 Appellate Court of Indiana
• Release Date : January 20, 1945
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 63 KB

Description

CRUMPACKER, Judge. This appeal is prosecuted for the sole purpose of obtaining a review of the trial court's ruling in sustaining a demurrer for want of facts to the appellant's complaint. The complaint in question alleges in substance that the appellee is an Indiana corporation whose capital structure is divided into 100 shares of common stock of no par value and 1,720 shares of preferred stock having a par value of $100 each. That the appellant is the owner and holder of certificate No. 309 evidencing ownership of 21 3/4 shares of such preferred stock and among the obligations of the appellee to the appellant, as provided by said certificate, is the following covenant: 'Dividends shall be paid on the preferred stock out of earnings as hereinafter set out. During each fiscal year from the total gross income of this corporation there shall be deducted all taxes, operating expenses, maintenance, repairs and obligations due under the mortgage referred to in the purpose clause of these Articles of Incorporation, together with other proper corporate charges. As long as any preferred stock is outstanding all income remaining after the deductions hereinbefore referred to but before any charges for depreciation or obsolescence, shall be used for the payment of dividends and the retirement of preferred stock, 65% of such remaining income to be used for the payment of dividends on the preferred stock, which shall not exceed 6% in any one year, and the remaining 35% to be placed in a sinking fund, which found shall be used by the Fiscal Agent of the corporation in purchasing preferred stock of this company at the lowest price obtainable.' That 65 per cent of the appellee's earnings, after the payment of all expenses and charges required before the payment of dividends on preferred stock, in the year 1943, were in excess of the sum required to pay dividends equal to 6 per cent per annum on all outstanding preferred stock at the end of said year and said appellee now has in its hands funds sufficient to pay dividends thereon for the year 1943 at the rate of 6 per cent. That the appellee has failed and refused to pay any dividend upon said preferred stock for said year notwithstanding the fact that it is solvent and the payment of said dividend would not render it insolvent or create a danger of its becoming so.

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