16 S.E.2d 423 | Ga. | 1941
1. Where the facts so warrant, a receiver is not precluded from contesting an intervention, by his statement in a previous report, which was not made a judgment of the court, that to the best of his knowledge, information, and belief a list of liabilities, including the intervenor's claim, was correct.
2. Under section 10(d) of the corporation act of January 28, 1938 (Ga. L. Ex. Sess. 1937-38, pp. 214, 224; Code Supp. § 22-1828 (d)), a corporation is not authorized "to purchase . . shares of its own capital stock, . . except from the surplus of its assets over its liabilities, including capital stock." The price which the defunct corporation agreed to pay to a stockholder for one half of its stock represented an amount in excess of its surplus; and the corporation having already paid to the stockholder on such purchase-price more than its surplus, the intervenor was not authorized, at the instance of the defunct corporation, to pay any of the balance to the stockholder. Accordingly this item of the intervenor's claim was properly disallowed. $61.65 of this item, which represented amounts claimed by the intervenor for materials furnished by the intervenor to the stockholder on the alleged balance due him by the defunct corporation, was properly disallowed for the additional reason that the evidence authorized a finding that these materials belonged, not to the intervenor, but to the defunct corporation.
3. As to that portion of the intervenor's claim which represented a purchase of unsecured creditors' claims against the defunct corporation, made by the intervenor after the receivership, such purchase would not give the intervenor a superiority over other general creditors by entitling it to set off the full amount of the purchased claims against its debt to the defunct corporation, but would entitle it to occupy the status of other general creditors, so as to be paid ratably with them as the proceeds from the receivership might permit. Until a determination of such proper amount of credit, it was error to disallow this item in toto.
4. It was error to disallow the intervenor's claim for merchandise bought by the defunct corporation, for which the intervenor assumed the purchase-money obligation to the creditor, and took over the merchandise from the defunct corporation, and took an assignment of the creditor's claim against the corporation, all before the receivership proceeding. *645 This is true for the reason that it is conceded that the receiver's claim against the intervenor covers the same merchandise and relates to the same transaction, in which the defunct corporation has paid nothing and has been relieved from liability by the intervenor.
5. Under the preceding rulings, it was error to disallow the intervenor's claim "in its entirety," and to direct the receiver "to collect any indebtedness of [the intervenor] due to the receiver."
2. The intervenor sought to set off three groups of claims, in the total amount of $2185.01, against its admitted debt of $2140.30 to the defunct corporation. The first item of $252.58 represented payments through materials and labor by the intervenor, at the instance of the defunct corporation, to its stockholder on an alleged *646 balance due him by the latter on the agreed purchase-price of $5500 for one half of its capital stock of 1400 shares. These purchased 700 shares, apparently of the par value of $7000, were shown by the minutes of the defunct corporation to have had a "book value" at the time of the purchase of $7878.50. The minutes further showed that $4423.02 of the purchase-price had been previously paid to the stockholder. One half of "the surplus of . . assets over . . liabilities, including capital stock," as defined by the corporation act of 1938 (Code Supp. § 22-1828 (d)), thus amounted to no more than $878.50, so that the total surplus did not exceed $1757. Since the agreed purchase-price of $5500 and the previous payments of $4423.02 far exceeded this amount, the intervenor's payments to the stockholder were illegal, and were properly disallowed.
3. The second group of items, claimed by the intervenor, consists of amounts due by the defunct corporation to creditors, in the total sum of $330.06, which the intervenor claims it paid and took assignments. The bookkeeper of the defunct corporation testified that the intervenor paid these claims, but not until after the receiver was appointed, and that until then they were carried on the books of the corporation. The record does not show any averment or proof of insolvency of the corporation; but the petition for a receiver alleged merely that it "has ceased to exist" by having discontinued doing business, and a receiver was necessary to protect and collect its assets and settle its affairs. The petition alleged a "book value" of assets sufficient to pay off liabilities, and the answer of the corporation denied insolvency, while admitting a willingness to have a receiver. The new corporation act (Code Supp. §§ 22-1877, 22-1878) authorizes a receivership "when any corporation incorporated or reincorporated under this chapter shall . . cease to exist in any manner whatever;" and provides that after payment of costs, expenses, and liens, receivers "shall pay the other debts due from the corporation if the funds in their hands shall be sufficient therefor; and if not, they shall distribute the same ratably among all the creditors who shall prove their debts" as directed by the court. In receiverships based on insolvency, it is the rule, that, "in the absence of statute, the filing of the petition for the appointment of a receiver closes the right to purchase claims and use them by way of set-off when sued by that officer. . . At that moment *647
the rights of creditors attach; it ceases to be a going concern; the assets are impressed with a trust for the benefit of all alike. Prior thereto, the privilege of buying claims to be used as a set-off continues, even though the assignee may know of the insolvency." Nix v. Ellis,
4. The last item of $1602.32, claimed by the intervenor, represents an amount originally due by the defunct corporation to a creditor for merchandise bought on account. A written assignment, made by the creditor to the intervenor the day before the receivership, was in evidence. Under the testimony, this assignment was made "when intervenor took over merchandise and guaranteed payment of the account prior to the receivership." Although the record does not clearly show the nature of the $2140.30 admitted indebtedness due by the intervenor to the defunct corporation, against which it seeks to set off this and other items, counsel for the receiver in their brief concede that "in taking over the merchandise of the [defunct corporation] in the sum of $2140.30, [the intervenor] received merchandise worth this amount;" and *648 that the intervenor "then assumed the indebtedness in the sum of $1602.32," due by the defunct corporation to the creditor, which claim against the corporation the creditor assigned to the intervenor. Although it thus appears that the intervenor took over the merchandise involved in the transaction, it is conceded that the debt which the receiver claims against the intervenor is the value of this same merchandise. Since the intervenor assumed the corporation's debt therefor and relieved it of liability, and since the intervenor took the assignment before the receivership, it should not have been precluded from setting off the amount of its claim against the claim for the same merchandise.
Judgment affirmed in part and reversed in part. All theJustices concur.