F. S. MOSELEY & CO., Claimant Below, Appellant,
MIDLAND-ROSS CORPORATION, Respondent Below, Appellee.
Samuel R. Russell (of Morford, Young & Conaway), Wilmington, for appellant.
[40 Del.Ch. 246] Aaron Finger (of Richards, Layton & Finger), Wilmington, for appellee.
SOUTHERLAND, C. J., and WOLCOTT, Justice, and DUFFY, Judge, sitting.
SOUTHERLAND, Chief Justice.
The action below is one under 8 Del.C. § 262 for the appointment of an appraiser to determine the value of the shares of stock of objectors to a merger of Industrial Rayon Corporation with the appellee, Midland-Ross Corporation. F. S. Moseley & Co., the appellant, filed a claim for appraisal in respect of certain shares. Midland-Ross objected, and the Vice Chancellor sustained the objection and disallowed the claim. Moseley appeals.
Moseley & Co. is a firm of stockbrokers in Boston. There were registered in its name more than 1200 shares of Industrial Rayon stock. On April 24, 1961, prior to the vote on the merger, it signed and sent to Industrial Rayon Corporation a letter enclosing a proxy voting 1200 of such shares against the merger. The letter reads:
'April 24, 1961
'Industrial Rayon Corp.
'660 Union Commerce Building
'Cleveland 1, Ohio
'We are enclosing a proxy on which we have voted against the adoption of the Merger Agreement providing for the merger of Industrial Rayon Corporation into Midland-Ross Corporation as described in the Notice of Special Meeting and Proxy Statement dated March 28, 1961, in accordance with instructions from the holders of beneficial interest of 1200 shares stock registered in our name.
'F. S. Moseley & Co.'
[40 Del.Ch. 247] The merger was thereafter approved. On May 4, 1961, Moseley & Co. made written demand upon Midland-Ross for payment for the 1200 shares. ...