172 Mo. App. 495 | Mo. Ct. App. | 1913
This is a suit in equity by appellant, as a judgment creditor of the Kansas City Post-Publishing Company, a corporation, against respondent, the Sheridan Pubhshing Company, another corporation, to subject its property to the payment of said judgment on the ground that the former corporation was merged into the latter, and that, having-absorbed all the property of the former corporation,, the latter corporation held said property and assets, as a trust fund for the benefit of the creditors of said former corporation. The appellant seems to proceed', on the theory that proof of the mere transfer by a-corporation of all its assets to another corporation renders the latter liable for the debts of the former without regard to the facts constituting and surrounding the transfer. But, as will be seen later, the-question whether the latter can be held for the debts-of the' former depends on the facts.
In this case the Kansas City Post Publishing-Company was organized January 30, 1906, to publish the paper in Kansas City called “The Kansas City Post.” This company became involved and owed different creditors-various sums aggregating $33,746.56,. but which amount did not include the indebtedness, upon which appellant obtained the judgment referred to at the outset and specified below, and on which this suit rests. It did include, however, an indebtedness to appellant of $4992.45.
On November 23, 1906, the Sheridan Publishing-Company was organized and incorporated. The stock
The schedule referred to in this agreement contained a list of debts to various creditors in various amounts aggregating $33,746.56, among which was a debt to appellant herein of $4992.45 but the indebtedness herein sued for was not included in said schedule. And there was evidence to the effect that it was not included in the schedule because the Post Company did not regard it as its obligation but had refused to recognize it because it was made prior to the incorporation of the Post Comapny. There is nothing to show, however, that the Sheridan Company knew of this debt.
On January 25, 1909, over two years after the transfer, appellant recovered judgment against the Post Company for this other debt, amounting to $707.25,- and on January 19, 1910, brought this suit to enforce it as a lien against the assets and property conveyed to the Sheridan Company.
There is no proof in the record anywhere as to the reasonable value of the property conveyed to the Sheridan Company, nor that the $35,000 paid was an inadequate price therefor. Presumptively the price was adequate. Fraud must be proved by the party charging it. The facts presented do not- of themselves show fraud. They do not present a case where there was a fraudulent transfer of assets by one corporation to another to the injury and loss of a creditor of the former. On the contrary, the record shows a sale of the property of the former for the purpose of paying its debts, and a use of the purchase price by the purchaser to pay those debts, one of the largest of which (nearly $5000) was due and paid to appellent by respondent, and was received by appellant with no objection or mention of its other indebtedness. In other words, the transaction amounted to nothing more than the- purchase of the property of one corporation by another in good faith, not for the purpose
The facts of this case are wholly dissimilar to the-facts in the cases of Bertholdt v. Land Co., 91 Mo. App. 233; Barrie v. United Railways Co., 138 Mo. App. 557 or Johnson v. United Railways, 152 S. W. 362. In the Bertholdt ease the transfer was made after the institution of the suit by the creditor, and the transfer passed a vast amount of property to the-succeeding corporation for which no consideration was paid at all. In fact the court held that there-was no consideration paid nor sale made; simply an absorption by the new company of the old in which it was attempted to place the assets of the corporation beyond the reach of creditors. In the Barrie and Johnson cases the court found fraud of the most flagrant character; vast properties were turned over to the succeeding corporation without consideration and with no regard for the rights of creditors, and, in fact, for the purpose of defrauding, them.
In the ease before us there was an outright sale of the assets for an agreed price, and the consideration received was used to pay the creditors of the selling corporation, one of whom was appellant who accepted from the buying corporation its debt of nearly $5000 without saying a word about another debt it claimed to have. At the time of the transfer this other debt had not been sued on or reduced to judgment. There was, therefore, no lien inchoate or otherwise on the assets bought by the Sheridan Company, and the latter agreed to. pay only those debts 'listed in the schedule. A corporation in failing circumstances may, in Missouri, prefer one creditor to another in discharging its obligations if such preference is made in good faith while the property of the company remains in its possession unaffected by liens or by process of law. [Alberger v. National Bank, 123 Mo. 313; Schufeldt v. Smith, 131 Mo. 280.] The
It is intimated, though not pressed upon our attention, that inasmuch as the price for the sale was $35,000, and the debts paid amounted to only $33,746.56, there is yet due the Post Company the sum of $1253.44. It is not clear- whether there is this sum after paying the schedule debts with interest or not, nor, if so, whether it has been paid to the old corporation. If there is such sum belonging to the old corporation, either in the hands of the Sheridan Company or turned over to the stockholders of the Post Company, there is a method to reach it, but not in this suit.
We may add further that, while we do not decide whether, by accepting its debt of nearly $5000 without notifying respondent of the existence of its other