porations is of such a fiduciary nature that transactions between boards of directors having common members are regarded as jealously by the law as are personal dealings between a director and his corporation, and where the fairness of such transactions is challenged the burden is upon those who

would maintain them to show their entire fairness, and where a sale is involved, the full adequacy of the consideration, and this is especially true where a common director is dominating in influence or in character. [For other cases, see Corporations, V. d; Evi dence, II. f, in Digest Sup. Ct. 1908.] Appeal findings.

review of facts concurrent

7. In suits in equity a concurrent finding by the two lower courts on a question of fact will be accepted by the Federal Supreme Court unless it be clear that their

conclusion is erroneous.

[For other cases, see Appeal and Error, 49314959, in Digest Sup. Ct. 1908.] Corporations sale of property -confirmation consideration failure to obtain higher bid at public sale. 8. The highest cash offer for the property of a corporation at a public sale is not such a measure of its value that the failure to obtain a bid at such sale for more than the consideration fixed in a private sale of such property, authorized by the owners of a majority of the capital stock, should be accepted by the courts as a sufficient reason for confirming such sale when attacked by the minority stockholders, where the courts found such consideration on other evidence to be inadequate.

[For other cases, see Corporations, VI. f, in Digest Sup. Ct. 1908.] Judgment conformity to pleadings.

9. A court of equity must set aside, at the instance of minority stockholders, a sale of all the corporate property, authorized by the owners of a majority of the stock, if the consideration for the sale is found to be inadequate, and may not confirm such sale upon condition that no higher price be obtained at public sale, where, under the pleadings, the court had power to confirm the sale if it was found to have been lawfully made, but only upon the terms on which the parties had contracted to make it, and neither the offer to purchase nor the acceptance contemplated any public offer of the property, or a sale at a higher price if offered.

[For other cases, see Judgment, II. f, in Digest

Sup. Ct. 1908.]

[No. 25.]

Argued April 25 and 28, 1919. Restored to docket for reargument December 8, 1919. Reargued March 3 and 4, 1920. Decided January 24, 1921.

the relief sought by minority stockholders against a sale of the entire corporate property, authorized by the owners of the majority of the capital stock. Reversed and remanded for further proceedings.

See same case below, 157 C. C. A. 417, 245 Fed. 225.

The facts are stated in the opinion.

Mr. Thomas J. Walsh argued the cause and filed a brief for appellants: Appellants admit that it is within the power of the directors and a majority of the stockholders of an insolvent corporation, or a corporation in danger of insolvency, to convert all of its property into cash, with a view to the division of the remainder among the stockholders, and the dissolution of the company.

Treadwell v. Salisbury Mfg. Co. 7 Gray, 393, 66 Am. Dec. 490.

But, in this connection, a distinction must be drawn between a losing corporation and one that is insolvent or threatened with insolvency. The bare fact that, in the way the business of the company has been conducted, it does not produce a profit, does not justify the majority of the stockholders in abandoning the purpose for which the corporation was organized and winding it up.

Noyes, Intercorporate Relations, § 112; Butler v. New Keystone Copper Co. Del. 93 Atl. 380; Treadwell v. Salisbury Mfg. Co. 7 Gray, 393, 66 Am. Dec. 490.

If the affairs of a corporation get into such a condition that a sale of all of its property is justified, that sale must be made for a pecuniary consideration, as a step towards the liquidation of the company.

Noyes, Intercorporate Relations, 118; Tanner v. Lindell R. Co. 103 Am. St. Rep. 548, note.

Even a general power to buy, sell, or exchange property would not authorize an exchange of all the property of a corporation for the stock of another.

Forrester v. Boston & M. Consol. Copper & S. Min. Co. 21 Mont. 563, 55 Pac. 229, 353; Kean v. Johnson, 9 N. J. Eq. 401.

There was neither a sale nor an exchange in any just or legal sense. Forrester v. Boston & M. Consol. Cop

cuit Court of Appeals for the Ninth Circuit to review a decree which affirmed

229, 353; Morris v. Elyton Land Co. 125 Ala. 263, 28 So. 513.

pearing could be justified, the Alice had no power to acquire or hold the stock of the Anaconda, and accordingly the Isale was void.

MacGinniss v. Boston & M. Consol. Copper & S. Min. Co. 29 Mont. 459, 75 Pac. 89; California Nat. Bank v. Kennedy, 167 U. S. 362, 42 L. ed. 198, 17 Sup. Ct. Rep. 831; Noves, Intercorporate Relations, §§ 264, 281; Elyton Land Co. v. Dowdell, 113 Ala. 177, 59 Am. St. Rep. 105, 20 So. 981; Seely v. Huntington Canal & Agri. Asso. 27 Utah, 179, 75 Pac. 367.

The identity between the parties effecting the purchase and the parties accomplishing the sale invalidates it.

V.

Idaho-Oregon Light & P. Co. v. State Bank, 139 C. C. A. 503, 224 Fed. 39; Richardson V. Green (Washburn Green) 133 U. S. 30, 33 L. ed. 516, 10 Sup. Ct. Rep. 280; Sausalito Bay Land Co. v. Sausalito Improvement Co. 166 Cal. 302, 136 Pac. 57; O'Conner Min. & Mfg. Co. v. Coosa Furnace Co. 95 Ala. 617, 36 Am. St. Rep. 251, 10 So. 290; Munson v. Syracuse, G. & C. R. Co. 103 N. Y. 58, 8 N. E. 355; Sumners v. Glenwood Gold & S. Min. Co. 15 S. D. 20, 86 N. W. 749; Thomas v. Brownsville Ft. K. & P. R. Co. 1 McCrary, 2 Fed. 877; 2 Thomp. Corp. §§ 1242, 1243; 10 Cyc. 791; 21 Am. & Eng. Enc. Law, 2d ed. 899; Noyes, Intercorporate Relations, § 114; San Diego v. San Diego & L. A. R. Co. 44 Cal. 106; Hyams v. Calumet & H. Min. Co. 137 C. C. A. 239, 221 Fed. 542.

The contention that the transaction under investigation is in violation of the Sherman Law can be made in this suit. Bigelow v. Calumet & H. Min. Co. 155 Fed. 876; United States v. Union P. R. Co. 226 U. S. 86, 57 L. ed. 133, 33 Sup. Ct. Rep. 53; Frank v. Union P. R. Co. 141 C. C. A. 510, 226 Fed. 906; De Koven v. Lake Shore & M. S. R. Co. 216 Fed. 955; International Harvester Co. v. Missouri, 234 U. S. 199, 58 L. ed. 1276, 52 L.R.Á.(N.S.) 525, 34 Sup. Ct. Rep. 859. The transfer assailed was made in

violation of the Anti-trust Act.

United States v. Reading Co. 226 Fed. 299; Continental Wall Paper Co. v. Louis Voight & Sons Co. 212 U. S. 227. 53 L. ed. 486, 29 Sup. Ct. Rep. 280, 19 L.R.A.(N.S.) 143, 78 C. C. A. 567, 148 Fed. 939; Swift & Co. v. United States, 196 U. S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep. 276; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 44 L. ed. 136, 20 Sup. Ct. Rep. 96, 46 L.R.A. 122, 29 C. C. A. 141, 54 U. S. App. 723, 85 Fed. 271; Chattanooga Foundry & Pipe

Works v. Atlanta, 203 U. S. 390, 51 L. ed. 241, 27 Sup. Ct. Rep. 65; W. W. Montague & Co. v. Lowry, 193 U. S. 38, 48 L. ed. 608,, 24 Sup. Ct. Rep. 307; United States v. United States Steel Corp. 223 Fed. 178; United States v. American Can Co. 230 Fed. 859; United States v. Eastman Kodak Co. 226 Fed. 62; United States v. Union P. R. Co. 226 U. S. 61, 57 L. ed. 124, 33 Sup. Ct. Rep. 53; Bathtub Trust Case (Standard Sanitary Mfg. Co. v. United States) 226 U. S. 49, 57 L. ed. 117, 33 Sup. Ct. Rep. 9; United States v. Reading Co. 226 U. S. 324, 370, 57 L. ed. 243, 258, 33 Sup. Ct. Rep. 90.

Mr. W. B. Rodgers argued the cause, and, with Mr. L. O. Evans, filed a brief for appellees:

The circumstances under which private corporations may sell and dispose, by absolute conveyance, of all of their property, are clearly stated in Thompson, Corporations, 2d ed. § 2429. the Alice was expressly authorized by A conveyance of all the property of its articles of incorporation and by the statutory law of the state of Utah. Min. Co. 39 Wash. 608, 81 Pac. 1047; Pitcher v. Lone Pine Surprise Consol. Lange v. Reservation Min. & Smelting Co. 48 Wash. 167, 93 Pac. 208; Traer v. Lucas Prospecting Co. 124 Iowa, 107, 99 N. W. 290; Maben v. Gulf Coal & Coke Co. 173 Ala. 259, 35 L.R.A.(N.S.) 396, 55

So. 607.

The findings of the district court and holders of the Alice Company had full court of appeals that the majority stockpower to dispose of all its property, by reason of its financial condition, the state of its property and corporate busiout the purposes for which it was ness, and its inability to further carry created, are fully supported by both the

law and the evidence.

Forrester v. Boston & M. Consol. Copper & S. Min. Co. 21 Mont. 544, 55 Pac. 229; Treadwell v. Salisbury Mfg. Co. 7 Gray, 393, 66 Am. Dec. 490; Hayden v. Official Hotel Red Book & Directory Co. 42 Fed. 875; Manufacturers' Sav. Bank v. Big Muddy Iron Co. 94 Mo. 38, 10 S. W. 865; Bowditch v. Jackson Co. 76 N. H. 351, L.R.A.1917A, 1174, 82 Atl. 1014, Ann. Cas. 1913A, 366; Sewell v. East Cape May Beach Co. 50 N. J. Eq. 717, 25 Atl. 929; Traer v. Lucas Prospecting Co. 124 Iowa, 107, 99 N. W. 290; Price v. Holcomb, 89 Iowa, 123, 56 N. W. 407; Thomp. Corp. 2d ed. §§ 2424, 2429, note; Cummings v. Parker, 250 Mo. 427, 157 S. W. 629; Miners'

the Anaconda Company, under the circumstances disclosed in this case, had the legal right to acquire the Alice properties for the purposes and in the manner in which they were acquired.

United States v. E. I. DuPont De Nemours & Co. 188 Fed. 127; Taft, Antitrust Act & Supreme Ct. pp. 112, 126; MacGinniss v. Boston & M. Consol. Copper & S. Min. Co. 29 Mont. 428, 75 Pac. 89; Bigelow v. Calumet & H. Min. Co. 155 Fed. 869, 167 Fed. 704, 94 C. C. A. 13, 167 Fed. 721; Standard Oil Co. v. United States, 221 U. S. 1, 66, 55 L. ed. 619, 647. 34 L.R.A. (N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734; United States v. American Tobacco Co. 221 U. S. 106, 55 L. ed. 663, 31 Sup. Ct. Rep. 632; Moore, Interstate Commerce, § 337; Swift Co. v. United States, 196 U. S. 396, 49 L. ed. 524, 25 Sup. Ct. Rep. 276; Addyston Pipe & Steel Co. v. United States, 175 U. S. 244, 44 L. ed. 148, 20 Sup. Ct. Rep. 96; United States v. Union P. R. Co. 226 U. S. 82, 57 L. ed. 131, 33 Sup. Ct. Rep. 53; Northern Securities Co. v. United States, 193 U. S. 331, 48 L. ed. 697, 24 Sup. Ct. Rep. 436; United States v. Trans-Missouri Freight Asso. 166 U. S. 334, 41 L. ed. 1025, 17 Sup. Ct. Rep. 540; United States v. E. I. DuPont De Nemours & Co. 188 Fed. 127; 10 Columbia L. Rev. Dec. 1910, p. 687.

Although the findings of fact made by the court be not disturbed, and be held by this court to be justified by the testimony in the case, the decree of the court is nevertheless correct, and should, in all respects, be affirmed.

Mason v. Pewabic Min. Co. 133 U. S. 50, 33 L. ed. 524, 10 Sup. Ct. Rep. 224; 16 Cyc. 478; Wheeler v. Abilene Nat. Bank Bldg. Co. 16 L.R.A. (N.S.) 892, 89 C. C. A. 477, 159 Fed. 391, 14 Ann. Cas. 917; Koehler v. St. Mary's Brewing Co. 228 Pa. 648, 139 Am. St. Rep. 1024, 77 Atl. 1016; Bowditch v. Jackson Co. 76 N. H. 351, L.R.A.1917A, 1174, 82 Atl. 1014, Ann. Cas. 1913A, 366.

Mr. Justice Clarke delivered the opinion of the court:

assignments as should be necessary to complete the sale, and a deed in form conveying all of the Alice property to the Anaconda Company was executed and delivered by [592] them on May 31, 1910. The consideration, thirty thousand shares of the capital stock of the Anaconda Company, was paid, and the purchaser took possession of the property.

Almost a year later, on April 15, 1911, at a special meeting of the stockholders of the Alice Company, a resolution was adopted, by the vote of more than two thirds of the issued capital stock, in favor of dissolving the corporation, and the board of directors was authorized to take the court action prescribed by the laws of Utah, under which the company was organized, to accomplish such dissolution. Suit for this purpose was instituted in the appropriate state court.

On November 6, 1911, five months after the resolution in favor of dissolution was adopted, the bill in this case was filed by minority stockholders, praying for a decree, that the deed of May 31, 1910, be declared void, that it be delivered up and canceled, that the consideration for it be returned to the Anaconda Company, and that all court proceedings to dissolve the Alice Company be stayed pending final decree in the case. The district court approved and confirmed the sale, and its decree was affirmed by the circuit court of appeals. The case is here on appeal.

The appellants claimed in the courts below and argue here that the sale was voidable for four reasons, viz.:

(1) Because the purchase was made in pursuit of the purpose of the Amalgamated Copper Company and the Anaconda Company to monopolize the production of copper in the Butte camp, and to restrain the sale of it in interstate commerce and in the markets of the world, in violation of the Sherman Anti-trust Act;

(2) Because the owners of less than all of the capital stock of the Alice Company could not authorize the sale of all of the property of the corporation over the protest of owners of a minority of the stock;

[593] (3) Because the Alice Company could not lawfully acquire stock in another corporation; and

We shall consider these claims in the order stated.

With respect to the first contention. It is now the settled law that the remedies