This time, Mrs. Jackson appeals from the trial court's holding that she became a shareholder of the company only on the date of September 14, 1988, which was the date on which the trial court entered the order directing that the principals of the company issue shares to Mrs. Jackson. She contends that she must be considered as a shareholder on the date that she attempted to exercise her warrant, which was on May 8, 1987. That warrant has been declared to be enforceable by prior decision of this court, 1
and the only question now before us is whether Mrs. Jackson's conduct on May 8, 1987 was a valid exercise of that warrant.
If it was, then she is entitled as a matter of law to the relief she sought in the trial court, i.e., to require that the principals return to the corporation all dividends paid to themselves after that date, as well as al] other unauthorized disbursements of corporate funds. 2
If it was not, then the trial court must be affirmed.
1. (a) There is no question but that on May 8, 1987, Mrs. Jackson gave notice of tender to purchase a portion of the shares under warrant, it being her intent to become a shareholder to an extent that would enable her to examine the corporate books. The response of principals of the company was to file an action for declaratory judgment, in which they contended that the warrant was invalid, and to seek a judicial determination to that effect.
But tender by the vendee before suit is excused if the vendor, by conduct or declaration, proclaims that, if a tender should be made, acceptance would be refused. . . . [such] conduct on the part of the [vendor] would excuse the [vendee] from making the tender in accordance with the terms of the contract. Equity never requires a party to do a vain or useless thing before undertaking to assert his rights.
Because the position taken by the principals upon receipt of Mrs. Jackson's notice of tender was a categorical denial of the validity of the warrant, any technical deficiency that may have inhered to the tender was waived as a matter of law. It would be a work of arrant futility to require that Mrs. Jackson make full and complete tender of the entire option price in the face of the certainty that such a tender would be rejected on the ground that her warrant was invalid. "The law does not require a useless act." Tendler v. Thompson, 256 Ga. 633
, 634 (352 SE2d 388
2. Having held that the notice of tender was sufficient under the circumstances of this case, it follows that:
Mrs. Jackson's rights are those of a shareholder of 80% of the shares of Southern Pan and Shoring Company as of May 8, 1987.
3. The case is remanded for such further proceedings as may be required to assure that Mrs. Jackson is accorded every right to which she is entitled, and that she be granted such further relief as may be necessary to require the company and its principals to comply, fully and promptly, with all of the decisions and directions of this court relating to this case. 3
CLARKE, Chief Justice, concurring.
I concur in the judgment of the opinion. However, I confess some concern at the result it reaches.
Southern Pan is a small business corporation which has elected to be treated as a Subchapter S corporation for federal income tax purposes. This election requires that the profits of the corporation be attributed to the income of its shareholders. Because of this it would seem fairer to me for rights in the corporate profits to vest in the individual shareholders as the profits are earned. However, I find nothing in Georgia law supporting this proposition.