the affairs of the Amalgamated and Anaconda Companies, and that he very certainly was in control of the boards of directors of the companies which were parties to the sale of the Alice properties.

while, under the circumstances of this conduct of the practical administration of case, a sale of all of the property of a corporation could be authorized by the owners of less than all of the stock, for an adequate consideration, it must be for money only, for the reason that the minority stockholders may not lawfully be compelled to accept a change of investment made for them by others, or to elect between losing their interests or entering

a new company.

But it has been suggested that this rule, also, should be subject to the exception that when stock which has an established market value is taken in exchange for corporation property, it should be treated as the equivalent of money, and that a sale otherwise valid should be sustained. Noyes, Intercorporate Relations, § 120, and cases cited. We approve the soundness of such an exception. It would be a reproach to the law to invalidate a sale otherwise valid because not made for money, when it is made for stock which a stockholder, receiving it, may at once, in the New York or other general market, convert into an adequate cash consideration for what his holdings were in the corporate property.

In this case the trial judge determined without difficulty the market value of the stock received in payment for the Alice properties, and it is, of course, public knowledge that there was a wide and general market for Anaconda stock. This third contention of appellant must be denied.

Finally, it is argued that the sale of the Alice properties is void because negotiated and made by two boards of directors having a member in common, and for an inadequate consideration.

The relation of directors to corporations is of such a fiduciary nature that transactions between boards 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. Especially is this true where a common director is dominating in influence or in character. This court has been consistently emphatic in the application of this rule, which, it has declared, is founded in soundest morality, and we now add, in the soundest business policy. Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 588, 23 L. ed. 329, 330, 3 Mor. Min. Rep. 688; Thomas v. Brownville, Ft. K. & P. R. Co. 109 U. S. 522, 27 L. ed. 1018, 3 Sup. Ct. Rep. 315; Wardell v. Union P. R. Co. 103 U. S. 651, 658, 26 L. ed. 509, 511, 7 Mor. Min. Rep. 144; Corsicana Nat. Bank v. Johnson, 251 U. S. 68, 90, 64 L. ed. 141, 155, 40 Sup. Ct. Rep. 82.

[600] The district court found that the price agreed to be paid by the Anaconda Company was not an adequate one, and the circuit court of appeals refused to disturb that finding. With this conclusion we agree, applying the settled rule of this court that, in suits in equity, a concurrent finding by two courts on a question of fact will be accepted unless it be clear that their conclusion is erroneous. Baker v. Schofield, 243 U. S. 114, 118, 61 L. ed. 626, 630, 37 Sup. Ct. Rep. 333, and cases cited.

John D. Ryan, at the time of the sale, was president and a director of the Alice Company; he was also a director [599] and general manager of the Anaconda Company, and had been its president from 1903 to 1909; he was elected But the district court, notwithstanding a director and president of the Amal- this finding of inadequacy of price, did gamated Copper Company in 1909, and not set the sale aside, but ordered that had been a director of each of the the Alice properties should be offered at subsidiary companies of the combina- public auction by a master, and that if tion prior to that year. In 1905 he no bid should be received for an amount obtained an option on the majority of greater than that which the Anaconda the Alice stock for $600,000, and carried Company had agreed to pay, the sale it until it was purchased by the Butte should be confirmed. The offer at public Coalition Company, an Amalgamated sub-sale was made, no bid was received, and sidiary, of which he was a director, and the private sale to the Anaconda Comthat company voted a majority of the pany was thereupon confirmed. The cirAlice stock in favor of the disputed sale. cuit court of appeals, by a divided court, The record shows beyond controversy affirmed that decree. that Ryan was the representative of the Both courts relied upon Mason V. chief investors in the enterprise involved Pewabic Min. Co. 133 U. S. 50, 33 L. ed. in this litigation, that he dominated the 1524, 10 Sup. Ct. Rep. 224, as authority

for approving the sale for a price which they found was inadequate, after a greater amount could not be obtained for the property when offered at public sale, and in this we think they fell into error.

sale was confirmed without any reference being made to the action ordered if the upset price should not be obtained, and we must conclude that that part of the decree was not considered by this court.

As an original proposition, we cannot think that the amount offered for property at a public sale for cash is such a measure of its value that the failure to obtain a bid at such sale for more should be accepted by courts as a sufficient reason for affirming a sale for a price which they [602] found, on other evidence, to In business life forced be inadequate. sales for cash are such a last resort for obtaining money that a sale "under the hammer" is synonymous with a sale at a sacrifice, and prices obtained at such sales have usually been rejected by courts when tendered as evidence of value.

In this case, from evidence as to the character of the Alice properties, their location and surroundings, and from the opinions of experts, the trial court concluded that the price paid for them was inadequate, and we cannot doubt that from like or other evidence a more trustworthy conclusion could be obtained as to what their value was than would be derived from an offer at a public sale for cash.

In the Pewabic Case the charter period of the corporation having expired, a majority of the stockholders favored the organization of a new company, with the same amount of capital stock as the old, to take over the whole of its property, and that there should be allotted to the stockholders the same number of shares which they held in the old company, or, in the alternative, that those who did not desire the stock should receive the value of their shares, computed on a basis of $50,000 for the entire property of the company. The minority stockholders favored sale of the property and division of the proceeds. [601] On the bill filed by the minority stockholders the circuit court enjoined the transfer to the new company, and ordered a public sale of the property by a master, with a proviso in the decree that if no bids were offered in excess of $50,000 above the debts of the company, then the proposal of the majority should be carried into effect under the direction of the master. Before the property was To this it must be added that the resoluoffered for sale each of the parties appealed to this court from separate parts tions of the Alice Company to sell and of the decree. On that appeal, in addition of the Anaconda Company to purchase to a question of accounting, not material were for a price named, to be paid and Neither here, this court considered and decided received in designated stock. only the question whether, on such a wind-contemplated a public offering of the ing up of the affairs of a corporation, properties, and that a sale should be made the majority of the stockholders could at another price, greater than an amount lawfully compel the minority to either decreed by the court, if it should be take stock in a new company or accept for their stock a value to be fixed by the majority. No mention is made in the opinion of the court of the alternative character of the order of sale, and, although it was subsequently shown that the price proposed was an inadequate one, there had not been any finding by the

lower court that such was the fact when the case was decided here. It is probable that there was no objection to this feature of the decree. The minority stockholders, praying, as they were, for a public sale, for obvious reasons would not object to it, and the contention of the majority was that no sale at all should be ordered, but that their reorganization plan should be adopted. The decree of the circuit court that the property should be sold at public 65 L. ed.

offered. 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 when the price was found to be inadequate, a decree should have been entered, vacating and setting it aside, as prayed for by the appellants.

It results that the decree of the Circuit Court of Appeals must be reversed and the case remanded to the District Court for further proceedings in conformity with this opinion.

28

Reversed and remanded.

Mr. Justice McReynolds concurs in the result. 433

[603] STATE OF OKLAHOMA, Com- relief, is hereby denied, without preju

plainant,

Orders announced by Mr. Justice McKenna:

dice.

The motion of C. J. Benson, William Murdock, and James R. Armstrong, filed herein December 20, 1920, for an order requiring Frederic A. Delano, Esq., receiver, to file an inventory of certain material and equipment purchased by him and paid for out of the proceeds of the oil produced by him from certain premises in said motion described, and to account for the value thereof; and requiring said receiver to file forthwith an itemized statement of moneys charged by him against certain wells, and a statement of all sums of moneys realized by him from certain wells, and for other relief, as in said motion specified, is hereby denied without prejudice.

Upon consideration of the motion of Southwest Petroleum Company, filed The Motion of the Sinclair Oil & Gas herein January 3, 1921, for an order diCompany, filed herein on December 20, recting Frederic A. Delano, Esq., receiver 1920, for an order to require Frederic A. herein, to return to said company, purDelano, Esq., receiver, to refund to it one suant to the order of June 7, 1920, a cersixteenth (1/16) of the proceeds of the tain well, known as receiver's well numoil produced from certain premises in said ber one hundred and eighty (180), togethmotion described, and heretofore deposit-er with the land appurtenant thereto and ed with said receiver pursuant to the the structures, equipment, and material order of this court, together with the in-pertaining to said well, and the reterest collected thereon by said receiver, sponse of the receiver to said motion, and to require said receiver to surrender filed January 5, 1921, and the reand pay to said Sinclair Oil & Gas Com-sponse of the United States, filed Janupany one sixteenth (1/16) of the oil or ary 22, 1921, it is ordered that said the proceeds thereof delivered to said re-receiver do return to said Southwest ceiver since the 15th day of October, Petroleum Company said well number 1920, is hereby denied, without preju

dice.

one hundred and eighty (180), which lies south of the south edge of the sand The petition of the Oklahoma Petro- bed of the Red river as it was on the 1st leum & Gasolene Company, filed herein day of April, 1920 (marked generally by on December 20, 1920, for an order the border line of vegetation along the requiring Frederic A. Delano, Esq., edge of the flood plain), together with receiver, to file a statement of expenses the land appurtenant thereto, lying to incurred by him from May 16, 1920, the south of the south edge of the sand to July 1, 1920, in operating certain bed of said river, and the structures, wells designated in said petition, and equipment, and material pertaining to requiring said receiver to pay to said said well, and the net proceeds of the company the proceeds of one-sixteenth production thereof that have [605] (1/16) of the oil produced from said come to the hands of said receiver, wells from April 1, 1920, to November less operating expenses and reservations, 15, 1920, and the interest collected by upon terms that said Southwest Petrosaid receiver upon said proceeds, and leum Company comply with the prorequiring said receiver to refund to said visions contained in the order of this company one third (3) of the three six- court, made June 7, 1920, respecting teenths (3/16) of the proceeds of the oil the return of certain lands lying south from said wells, paid to said receiver of the south edge of the sand bed of since November 15, 1920, and that said said river which were, on the 1st day company be not required hereafter to of April, 1920, in the possession of pay to said receiver more than two six-persons claiming under patents from the teenths (2/16) [604] of the oil and gas produced from said wells, and for other

434

state of Texas, and not included in the river-bed lands as in said order defined.

254 U. S.

MEMORANDA

OF

CASES DISPOSED OF WITHOUT OPINIONS.

NORTHERN TRUST COMPANY et al., Trustees, etc., Plaintiffs in Error, v. ADOLPH H. ÉILERS et al. [No. 345.]

EX PARTE: IN THE MATTER OF THOMAS
WELSH, Petitioner. [No.-, Original.]
Motion for leave to file petition for a

Error to district court-jurisdiction be- Writ of Mandamus herein.
low.

In Error to the District Court of the United States for the District of Oregon. Mr. John Taylor Booz for plaintiffs in

error.

Mr. Ralph R. Duniway for defendants in error.

October 11, 1920. Per Curiam: Dismissed for want of jurisdiction upon the authority of Courtney v. Pradt, 196 U. S. 89, 91, 49 L. ed. 398, 399, 25 Sup. Ct. Rep. 208; Farrugia v. Philadelphia & R. R. Co. 233 U. S. 352, 353, 58 L. ed. 996, 997, 34 Sup. Ct. Rep. 591; Louisville & N. R. Co. v. Western U. Teleg. Co. 234 U. S. 369, 371, 372, 58 L. ed. 1356, 1358, 34 Sup. Ct. Rep. 810; Male v. Atchison, T. & S. F. R. Co. 240 U. S. 97, 99, 60 L. ed. 544, 545, 36 Sup. Ct. Rep. 351.

Mr. Martin Conboy for petitioner.
No appearance for respondent.
[608] October 11, 1920. Denied.

MARY L. GREER CONKLIN, Appellant, v.
GEORGE H. CONKLIN et al. [No. 192.]
Appeal-from district court-frivolous
Federal question.

Appeal from the District Court of the United States for the Southern District of Georgia.

Mrs. Mary L. Greer Conklin, appellant, pro se.

Messrs. William H. Barrett, Bryan Cumming, C. Henry Cohen, W. G. Brantley, Wm. E. Howard, and A. F. Purdy for appellees.

October 18, 1920. Per Curiam: Dismissed for want of jurisdiction upon the authority of Farrell v. O'Brien (O'Callaghan v. O'Brien) 199 U. S. 89, 100, 50 L. ed. 101, 107, 25 Sup. Ct. Rep. 727; Goodrich v. Ferris, 214 U. S. 71, 79, 53 L. ed. 914, 917, 29 Sup. Ct. Rep. 580; United Surety Co. v. American Fruit Produce Co. 238 U. S. 140, 142, 59 L. ed. 1238, 1239, 35 Sup. Ct. Rep. 828; Sugarman v. United States, 249 U. S. 182, 184, 63 L. ed. 550, 551, 39 Sup. Ct. Rep. 191.

MARY L. GREER CONKLIN, Appellant, v.
AUGUSTA CHRONICLE PUBLISHING COM-
PANY. [No. 353.]
Appeal-from district court-frivolous
Federal question.

1 Death of Turner C. Vason, one of the

appellees herein, suggested, and appearance of Anthony J. Salinas, administrator of the said Turner C. Vason, deceased, as a party appellee, filed and entered October 12, 1920, on motion of counsel in that be

half.