75 P. 585 | Or. | 1904
after stating the facts in the above terms, delivered the opinion of the court.
The findings admit that the decree of the Minnesota court established the insolvency of the corporation, the amount of its indebtedness, and the number of shares of capital stock issued by it, from which it follows that a payment by each stockholder of 62-)- per cent of his capital stock, if solvent, would have discharged the entire indebtedness, notwithstanding which he was required to pay a sum equal to the par value thereof. Though the defendant was not a party to the decree rendered against the corporation, he cannot, in his own defense, deny such liability, for a judgment against the corporation is, in effect, a judgment against the stockholder: Holland v. Duluth Iron M. & D. Co. 65 Minn. 324 (68 N. W. 50, 60 Am. St. Rep. 480); Holyoke Bank v. Goodman Paper Mfg. Co. 9 Cush. 576; Hanson v. Davison, 73 Minn. 454 (76 N. W. 254). Such decree, however, as to the ultimate question of a nonresident stockholder’s liability and the measure thereof, is not conclusive as against such stockholder who was not made a party to the suit, and will be regarded as open in the
The liability assumed by a person when he secures stock in a Minnesota corporation is to pay, in case of its insolvency, a ratable share of its indebtedness ; but, as its creditors ought not to be subjected to unnecessary delay in the collection of their demands, this liability, in an ancillary action based on the decree establishing the indebtedness of an insolvent corporation, is measured by the par value of the stock issued, and, if any sum remains after the creditors have been fully paid, the ratable part thereof can be returned to the stockholders who have contributed more than their just proportion : Allen v. Walsh, 25 Minn. 543; Marr v. Bank of West Tenn. 4 Lea, 578. Mr. Chief Justice Start, in Hanson v. Davison, 73 Minn. 454 (76 N. W. 254), in speaking of this method of enforcing payment of the par value of stock from a nonresident holder thereof, says: “ The only objection, in justice, such stockholder could make to such a procedure, would be that his right of contribution could not be worked out in such ancillary action. If he were called on to pay only his pro rata share of the deficiency, treating all the stockholders as solvent, the objection would wholly fail; but it would seem that his right to contribution, in case he was required to pay more than his share as between himself and the other stockholders, is subordinate to the equities of the creditors, as he can secure such contribution by appearing in the original action.” It will be remembered that the defendant did not appear in the original suit, but, as the decree in that case was rendered prior to his being adjudged a bankrupt, whereby all the stockholders were required severally to pay a sum of money equal to the par value of their stock, such decree resolved the uncertainty,
It is impossible to determine whether the Minnesota statute in relation to the duties of a receiver appointed to enforce a stockholder’s liability was offered in evidence, for the bill of exceptions contains none of the testimony given at the trial; but the pleadings admit and the court finds the substance of that law, from which it appears that plaintiff was authorized to collect from the resident stockholders of that State, who were parties to the decree, sums equal to the par value of their stock, and also empowered to maintain actions for that purpose in sister States against nonresident stockholders. In Hale v. Hardon, 95 Fed. 747 (37 C. C. A. 240), in construing the Minnesota statute, a distinction between a general receiver and a person appointed to enforce, in a foreign jurisdiction, payment of the par value of stock, is observed ; the court holding that neither, unless expressly authorized by statute, was empowered to enforce the individual liability of stockholders for the purpose of paying the debts of the corporation. In that case, Aldrich, J., in speaking of the title of a person appointed under the Minnesota statute to enforce such payment, and of the duties enjoined upon him, says : “It is of little consequence whether the person designated as the instrument or conduit through which equity runs from the court to the stockholders, and from recovery from the stockholders to the creditors, is called a receiver, an agent, a trustee, or an assignee. If some legal and equitable
The pleadings admit that Mendenhall, having secured a judgment against the Duluth Dry Goods Company for the sum of $12,808.76, caused an execution to be issued thereon which was returned wholly unsatisfied, whereupon in behalf of himself and all other creditors who might join therein he instituted a suit against the corporation and its resident stockholders, resulting in a decree in their favor for the sum of $81,717.76. Though this decree evidently awarded a specific sum to each creditor, the right to control the subsequent proceedings was vested in the court: Minneapolis Baseball Co. v. City Bank, 66 Minn. 441 (69 N. W. 331, 38 L. R. A. 415).- In that case Mr. Chief Justice
The reason upon which these exceptions rest is founded on the assumption that an agent is not supposed to communicate any knowledge he may have received, when by doing so he would betray a confidence reposed in him, reveal an intent to defraud his principal, or disclose an interest adverse to him; for, unless it can be presumed, in the light of attending circumstances, that an agent will impart the knowledge so secured, the law will not impute notice thereof. It will be remembered that notice of defendant’s bankruptcy was sent to his creditor, the First National Bank of Duluth, of which the plaintiff was cashier. If this bank had been appointed the statutory agent to enforce the liability of the stockholders of the insolvent corporation, it would undoubtedly have been to its advantage to secure for itself as large a percentage of the bankrupt’s estate for distribution as possible. By neglecting to prove the'claims of creditors of the corporation, the bank would thereby augment the ratio to which it was entitled; and on account of its adverse interest no presumption can be indulged that it would communicate to them the knowledge of the defendant’s bankruptcy which it has obtained,
The findings of the court being sufficient to support the judgment, it is affirmed. Affirmed.
l Fed. Stat. Am. 525, 578.
1 Fed, Stat, Am, 525, 559.
1 Fed, Stat. Am. 525, 528.
1 Fed. Stat. Am. 525, 661.
1 Fed. Stat. Am. 525, 606.