Crawford v. Roney, 126 Ga. 763

126 Ga. 763 | Ga. | 1906

Atkinson, J.

(After stating the facts.)

1. The plaintiff can not now be heard to say that the ruling that the case was subject to nonsuit was -erroneous. He acquiesced in that ruling as correct and sought to avoid its consequences by the introduction of additional testimony. If he had desired to .except to the ruling that the ease was subject to nonsuit, he should have allowed the order of nonsuit to be entered and excepted to that judgment. Glover v. Railway Co., 107 Ga. 34, and cit.

2. It appeared, from the uncontradicted evidence, that the defendant had subscribed for 10 shares of the capital stock of the company, that there had been a call by the company for the payment of all subscriptions, and that the defendant had paid $100. It is contended by counsel for plaintiff in error that this made a prima facie case, and cast the burden upon the defendant to show payment. On the other hand, it is contended by counsel for the defendant in error that it was incumbent on the plaintiff to show that the call was not responded to and that no payment has been made. As we understand the contention, it is that there is a presumption'arising from the call itself that payment has been made, and that the plaintiff must overcome this presumption. Mere proof of a stock' subscription will not ordinarily make a case of liability; for while by such subscription one promises to pay, the time of payment is to be fixed by a call, which is the demand fixing the time of payment and the proportion of the subscription to be paid. Cook on Stockholders (3d ed.), §105. After a call duly made, a fixed liability on the contract of subscription both as to time and amount arises, and mere proof of this liability makes a prima facie case for recovery. If, as between the corporation and a shareholder, a presumption of payment arises merely from the fact of a call, then such a presumption would arise in every case of debtor and creditor where the creditor makes a demand for payment. The general rule is, as between debtor and creditor, proof of a liability which is fixed and certain as to amount and time of payment, and lapse of the time allowed for payment, will cast upon the party liable the burden of showing payment or discharge. A stock subscription upon which a call has been duly made is, as between the corporation seeking payment thereof and a subscriber of stock, within the general rule. As to a subscriber for stock who is seeking relief as a stockholder against the officers of the company and others, it may be that there would under some circumstances be a presumption of payment resulting from a call. Such seems to have been the ruling in Doe v. Transportation Co., 78 Fed. 62, which is cited in 26 Am. & Eng. Enc. L. (2d ed.) 926.

3. Whether a corporation, when not prohibited by statute or by its -charter, may, under a general power to acquire property, become the purchaser of its'own shares, need not be determined in this case. But see, in this connection, Robinson v. Beall, 26 Ga. 1; Hartridge v. Rockwell, R. M. Charl. 260; 7 Am. & Eng. Enc. L. 818 et seq.; 1 Cook on Stockholders, §§309-311; 2 Thomp. Corp: § 2050 et seq. The banks of this State are now prohibited by law from using any part of the capital stock in the purchase of their own shares (Civil Code, § 1968), and the president and director so using the capital of the bank are indictable as for a felony. Penal Code, § 211. This statute was in effect when the case of Robinson v. Beall, supra, was decided, but no reference was made to it in that decision. The record does not disclose what are the powers of the company in respect to its right to purchase its own shares. But whether it had express power so to do, or the power was claimed under a general authority to acquire propertjq becomes immaterial to the consideration of the present case. If a corporation duly 'authorized to purchase its own shares buys such shares, upon which the stock subscription is only partially paid, and releases the subscriber from further payment, it in effect assumes the pa3rment of so much as is unpaid. But it can not impose this liability upon the remaining shareholders individually by mere resolution of its directors or shareholders. Such liability will only arise from thi^consent of the shareholders, express or implied. If a shareholder votes for such resolution, he will be estopped to deny the right of the corporation to purchase the shares, but an individual liability resulting from such purchase will only attach when he expressly agrees to be so bound, or such a state of facts is shown as would in law establish a promise on his part, supjoorted by a sufficient consideration. Neither the evidence admitted nor that which was rejected showed affirmatively that the defendant had become bound on the subscription for the shares which were purchased by the company.

4. The 4th headnote needs no elaboration. See, in this connection, Civil Code, § 5241; Waller v. State, 102 Ga. 684; Vischer v. Railroad Co., 34 Ga. 537; Jones v. Grantham, 80 Ga. 477; 4 Mich. Enc. Dig. Ga. Rep. 636, et seq.

5. What is established by the entries in books of account is, of course, a question for the jury; but we see no reason why they should not be aided in their investigation by the testimony of one experienced in such matters, setting forth the character of his examination and its results. When the books are in evidence, the testimony of such a witness can not be otherwise than helpful, but the jury are not in any sense bound by the results obtained by him.

. There were other questions argued by counsel, but under the view we have taken we do not think they are now ripe for decision.

Judgment reversed,

All the Justices concur.