143 Ind. 534 | Ind. | 1896
The appellant’s complaint in the circuit court consisted of five paragraphs, the first against the Dovetail Body and Gear Company, as a corporation organized under the laws 'of this State, seeking a judgment upon a note and the appointment of a receiver; the second paragraph differed from the first only in its allegations as to the facts upon which a receiver was prayed; the third paragraph sought a recovery upon said note as against said company, the appointment of a receiver, and made appellees Summerville and Barn-hill defendants, alleging, as to them, the receipt from said company and the appropriation by them to their individual uses and liabilities of a large sum in notes and securities, the property of said company. As to said sum, it was sought to charge said Barnhill and Summerville, who were directors and respectively president and secretary of said company, as for moneys misappropriated and to require an accounting therefor to the receiver. The fourth and fifth paragraphs were each against said company, said Barnhill and Summer-ville and a number of others, alleged members of said company. Each of said last two paragraphs was filed after the appointment of a receiver upon the other paragraphs, and each set forth the articles of incorporation of said company and the subscriptions thereto, which consisted of several signatures of the incorporators, and
The sufficiency of the fourth and fifth paragraphs of complaint and the insufficiency in the amount of the judgment against Barnhill and Summerville are questions presented upon the assignment of error by the appellant, and the sufficiency of the facts, specially-found, to warrant any judgment against Barnhill and Summerville is a question arising upon assignment of cross-error by them.
The fourth paragraph, even if sufficient standing alone, was subject to a motion to strike'it out, and the sustaining of a demurrer was equivalent to that motion. The appellant treating the Dovetail Body and Gear Company as a corporation, having, in this action, secured a receiver for it as a corporation, and having, in each paragraph of complaint, sued it as a corporation, and obtaining upon its first three paragraphs of complaint a judgment against it as a corporation, a judgment the correctness of which is not here in review and which must remain hereafter in force against the corporation — no complaint can now be heard that it is not a corporation. While different views of a cause of action may be stated in one complaint without becoming subject to demurrer for repugnancy, it is not permitted that one may come into court with a cause of action upon which the court grants, in whole or in part, the relief prayed, and then, in the same suit, to invoke the action of the court upon the same cause of action differently stated and in radical conflict with the action already taken by the court.
Parties may not “first blow hot and then blow cold” with the same breath. Courts are not required to adopt inconsistent positions, though either position alone may not be improper, and when one position is taken by the
The fifth paragraph of complaint discloses, as we have shown, the appointment of a receiver for the Dovetail Body and Gear Company. This disclosure renders the pleading had, since there is no cause of action in the creditor of a corporation to reach assets withheld from the corporation, for the payment of debts, when it affirmatively appears that a receiver is in charge of the corporation administering its effects. The recovery of subscribed and unpaid stock, or the setting aside of fraudulent conveyances to secure assets to pay debts, must he by the receiver, unless, possibly, it is alleged that he refuses to pursue the remedy. Big Creek Stone Co. v. Seward, 42 N. E. Rep. 464; Nat'l Bank of Terre Haute v. Vigo Co. Nat'l Bank, 141 Ind. 352; Hutchinson, Ass’ee, v. First Nat'l Bank of Mich. City, 133 Ind. 271; Voorhees v. Carpenter, 127 Ind. 300.
We consider, therefore, that it was not error to sustain the demurrer to either of said two paragraphs of complaint.
The only remaining question is as to the correctness of the finding and judgment of $2,000.00 against Barn-hill and Summerville. The facts specially found by the court were that the company was indebted to the appel
It is further found that by order of the board of directors an additional sum of $2,000.00 was borrowed by the
The conclusion of the court in finding that Barnhill and Summerville should pay $2,000.00 into court for the use of the receiver could not consistently have been upon the theory that such sum belonged to the $1,000 collected from the assigned assets and applied to the debt of $6,000.00, since that conclusion would have rendered it equally necessary to have required the entire $1,000.00 to have been so paid in. Nor could it be reasonably contended that the balance of the $8,118.37 above the $1,000.00 and the second assignment, all of which was returned to the company and to its receiver, constituted any part of the finding of $2,000.00 against Barnhill and Summerville, since such repayment restored, to that extent, the misappropriation, if any. The questions arising upon the discussion of counsel, and those properly arising upon the special finding, are
Treating the $6,000.00 loans as the indebtedness of Barnhill and Summerville, and that the company was indebted in a like amount to them, instead of the debt being directly that of the company, and, as we learn from the special finding, the company was neither insolvent nor contemplating dissolution, we are unable to conceive why it should he regarded per se fraudulent to pay, by assignment of notes and accounts, a part of that indebtedness directly to Barnhill and Summerville, and indirectly to appellant. To hold the payment fraudulent, as a matter of law, simply because the creditors are stockholders and officers of the company, would he to deny that an officer or stockholder could, with the possibility of valid repayment, make a loan to his company. The rule for which the appellant contends so earnestly, that the stockholder and the officer hold the assets of the corporation in trust for all of the creditors, and for that reason are denied the power to deal with-such assets for their own benefit, would often drive corporations into ruin for the lack of that aid so frequently received from those who are stockholders and officers, in the way of loans, or it would rob such creditors in denying them the right of repayment.
This court has firmly settled upon the rule that the
The validity of the debt is not questioned; the corporation secured the full benefit of the money secured from it by the two directors, and at the time of the assignment property of the supposed value of $12,000 remained from which to make the appellant’s $7,000.00 held against the company, and payment of the claim owing to the two directors was not a disadvantage to the company, and placed the appellant in no worse condition than if the debt had been owing to a stranger who had been preferred by the payment. The court failed to find the existence of fraud, though its existence was a question of fact. Fuller & Fuller Co. v. Mehl, 134 Ind. 60; Hutchinson, Ass'nee, v. First Nat’l Bank of Mich. City, supra; First Nat'l Bank of Crawfordsville v. Dovetail, etc., Co., supra.
The facts found rather repel the possible inference of the existence of fraud than to require a finding of its existence. In Henderson v. Indiana Trust Co., supra, an assignment of choses in action, by order of the board of directors, to a creditor holding accommodation endorsements of members of the board, which assignments had the effect to protect such endorsers, was held not fraudulent per se, though the corporation was insolvent. ,
As to the $2,000.00 for which the court rendered judgment against Barnhill and Summerville, the correctness of the court’s conclusion does not depend upon the existence or non-existence of fraud. By the finding of the court the corporation borrowed $2,000.00 to apply ‘ ‘ to the payment of the debt to the plaintiff, upon which said Barnhill and Summerville were personally liable.” The application was not made until after the corporation had passed into the hands of a receiver and when all of its assets belonged to the receiver, nor until a time when a trust relation did exist between the officers and the creditors for the application of all corporate assets to the claims of all creditors.
It is not found that the $2,000.00 were turned over to Barnhill and Summerville in payment of a debt of the company to them, but it is found that they, as president and secretary, were directed to pay that sum to the appellant.
They did not do as directed until after they had lost the authority to serve the corporation, nor until the receiver was in charge. Then by the rule that a trust relation arises in favor of the creditors, they could but account to the receiver for the moneys of the corporation in their hands undisposed of.
The sufficiency of the third paragraph of complaint, the only paragraph under which the judgment against Barnhill and Summerville could be rendered, is not presented by the record, nor was a motion made to modify
The judgment of the circuit court is affirmed.