Company was not, during this period, a corporation de facto, we cannot grant that the stated conclusion follows. Nor can we see wherein any importance attaches to the question as to whether the business was conducted by a de facto corporation or by the defendants as partners. In either event the defendant directors must still be charged as trustees under the statute. Regardless of the capacity in which the business was being conducted, the plaintiffs were entitled to the pro rata share, paid to them the same as all other stockholders. If the business transacted in the name of the Fargo Mercantile Company was in fact and in law a partnership business, it was clearly owned by all of the stockholders, and not merely by the trustees who happened to be most active in the conduct of the business, and any amounts paid to the stockholders from earnings would be rightfully theirs as owners.
The fallacy of the argument that payments made by the trustees subsequent to April 1, 1915, must be applied on liquidation claims of the stockholders is made apparent by considering the consequences that would follow if it were upheld. Every stockholder received like payments, with the result that before the discovery of the fact of dissolution they had all been overpaid on the principal of their liquidation claims, and there remained due to each only a small amount as interest. By the payment of this small amount as interest, the director trustees, according to this argument, would become the owners of the business, and this would be true regardless of the amount of stock owned by persons other than the directors. It needs no argument to demonstrate that trustees may not thus acquire for their own benefit the res of a trust.
The principles of law upon which the defendants are chargeable for the profits made through the handling of the trust property are clear and plain. The Code (Comp. Laws) provides, § 6282, that a trustee may not use or deal with trust property for his own profit or for any other purpose unconnected with the trust in any manner. § 6290 gives to the beneficiary of a trust an option to require the trustee.to account for all profits made. The law is well settled, even in the case of surviving partners continuing to use the capital supplied by a deceased partner, that a partner continuing the business becomes chargeable with the proportion- ate share of the profits during the time it is so used, instead of being liable merely for interest. Washburn v. Goodman et al., 17 Pick. (Mass.) 519; Long v. Majestre, 1 Johns, Ch. (N. Y.) 305; Case v. Abeel, 1 Paige, Ch. (N. Y.) 393. The obligations of trustees continuing a corporate business
