30 Ill. 413 | Ill. | 1863
Section twenty-seven of the act of February 12, 1849, entitled “An act to provide for the construction of plank roads by a general law,” provides that the stockholders of every company incorporated under that act, shall be liable in their individual capacity for the payment of the debts of such company for an amount equal to the amount of stock they severally have subscribed or hold in the company, over and above such stock, to be recovered of the stockholder who is such when the debt is contracted, or of any subsequent stockholder. By the twenty-ninth section, it is provided that in any action against any company formed under this act, the plaintiff may include, as defendants, any one or more of the stockholders of the company who shall be liable to contribute to the payment of the plaintiff’s claim, and judgment may be rendered against them also, as well as against the company. (Scates’ Comp. 534.)
In the declaration, the plaintiff alleges that the corporation derived its existence in virtue of this act, and that the several persons joined in the suit with the corporation, of whom appellant was one, were, at the time the indebtedness accrued, severally stockholders (setting forth the number of shares held by each, and the par value thereof) in the corporation, and as such jointly and severally liable, with the corporation, to the amount of their stock, and alleging that the stock so held by the individual defendants, was not stock originally subscribed but purchased in the market, and rely upon the sections of the act above quoted.
The defendants pleaded non-assumpsit, and several special pleas, which we do not consider necessary to notice, as the general issue opens the inquiry into all the points presented by them. The amendatory act of January 28,1851, could be given in evidence under the general issue, accompanied by proof of payment of the stock. This amendatory act is as follows : That the twenty-seventh section (above cited) be and the same is hereby so amended, that any subscriber to the capital stock of any plank road to be constructed in this State, under said law, shall not be responsible beyond the actual amount of stock so by him subscribed, and so much of said law as conflicts herewith, be and the same is hereby repealed. (Scates’ Comp. 535.)
The question would arise, under the general issue, is the appellant a subscriber within the meaning of this act ?
The proof shows that appellant, at the time the indebtedness accrued against the corporation, held twenty-two shares of stock, of the par value of fifty dollars per share—that of these shares nine of them were his original subscription, the remaining thirteen having been purchased by him. It was admitted on the trial, that the full amount of all these shares originally subscribed and purchased had been paid in full into the capital stock of the company, under the several calls and assessments made under their charter and by-laws, before the debt was contracted on which this suit was brought.
We do not entertain a doubt on the question. When it is considered, that the object of the amendatory act was to relieve against an acknowledged hardship caused by the harsh provisions of the original act, it must receive a liberal interpretation. The legislature did not, in providing this remedial law, mean subscribers merely—such persons who had originally become stockholders by an actual subscription to the capital stock, but those who held the stock by subscription, by purchase, by devise, or by any other mode—in short, it designed to include stockholders of every description. By any other construction, the purposes of the amendatory act could not be accomplished. As to nine shares, appellant was an original subscriber as admitted. By the purchase of the other thirteen shares, on which he paid the calls and assessments when made by the corporation, he was subrogated to all the rights and liabilities of the original subscriber, and became, to all intents and purposes, the subscriber.
It is very clear, the legislature did not intend to make a distinction between the different descriptions of stockholders, or class them, but intended to provide, that all of every description should be liable only to the amount of their stock, no matter in what way it was obtained or held. This was the evident purpose of the law, and we are bound to give it this effect. It is very pertinently asked by the appellant’s counsel, can it be pretended that the heirs, executors or administrators of a subscriber to this stock, to whom it would pass by operation of law, would be liable, whilst the subscriber himself was exempt? They would not come within the words of the amendatory act, yet they are undoubtedly within its spirit and intention, and so of this appellant and of others similarly situated.
It is further objected by the appellant, that- the plaintiff failed to prove that the corporation was organized under the general law. To this it is replied, that such objection was not specially pointed out in the court below on the trial of the cause, so that an opportunity might have been afforded to obviate it by proof; and further, that the appellant is estopped from questioning the fact of incorporation by the terms of a written stipulation between the parties found in the record.
This point, as here raised, does not come within any of the decisions to which reference is made by the counsel for appellee. The plea of non-assumpsit admitted the existence of the corporation and that only. All other averments of the declaration, save that, were directly in issue by the plea, one of which was, the organization under the general law, by the twenty-ninth section of which, the plaintiff was authorized to join the stockholders in his suit against the company. It was a necessary part of the plaintiff’s case that he should prove this controlling fact, as, without it, the joinder of these parties was not authorized. It was not the business of the defendant, to make this suggestion to the plaintiff; it was an indispensable part of his case, and such proof should have been made, for non constat but the company was organized under a special charter containing no such power to join parties who could not be joined without express law allowing it. The admission on the record is nothing more than an admission of the existence of the corporation, but under what law and with what powers, is not admitted, but put directly in issue by the plea of non-assumpsit.
The judgment is reversed, and the cause remanded.
Judgment reversed.
