155 Mo. 514 | Mo. | 1900
The Builders Iron Works, a business corporation, on September 15, 1894, made a voluntary assignment of all its assets for the benefit of its creditors. The plaintiff is the assignee under that deed of assignment. The defendants were the directors of the corporation and for alleged dereliction in that capacity they are here sued. The suit is to recover $7,000 of the capital stock which the petition essays to allege came into the hands of the defendants as directors, and for which they have failed to account. According to the petition it appears that the capital stock of the corporation was $20,000, divided into 200 shares of the par value of $100 per share, of which defendant Edwards subscribed for 100 shares and defendants Kilpatrick and Hunlet, for 50 each, so that those
Appellant in his statement filed herein, says: “No more than this $3,000 -was ever contributed to the funds of the corporation, nor accounted for by the defendants.” So there is no dispute on that point. At the close of the plaintiff’s evidence the trial court gave an instruction to the effect that the' plaintiff was not entitled to recover, thereupon he took a non-suit with leave and failing in his motion to have the same set aside, brings this appeal.
I. There is some discussion in the briefs as to the nature of the cause of action stated in the petition. Counsel for respondents treat the petition as stating an action for conversion, but appellant’s counsel says that that is a misconception, that the action is debt, yet in the same connection, immediately adds that it is assumpsit on an implied promise. Measured by the rules of good pleading the petition does not state a cause
It is also to be observed that the petition does not attempt to state a cause of action against the defendants as stockholders to recover the amounts severally due from each, on his stock subscription. The pleader recognized that each subscriber as such, was liable only for the unpaid balance due on his own subscription, but that the directors were liable jointly for the amount of the capital stock actually paid into the treasury. If instead of three stockholders there had been a hundred, these three directors would have been jointly and severally liable for all the money that actually came into their hands from the whole number of stockholders, but they would
II. Nothing that is said in this opinion is to be taken as giving countenance or toleration to the formation of a business corporation under our laws except when all the capital stock has been in good faith subscribed, and one-half thereof actually paid into the treasury in money or money’s actual equivalent at the time. The payment of stock subscriptions in property at visionary, merely speculative or inflated value, is an abuse of our statutes and there are penalties and liabilities for such abuses. [Van Cleve v. Berkey, 143 Mo. 109.]
But we are dealing now with a ease in which a voluntary assignee of a corporation is calling its directors to account for their alleged dissipation of its assets; a case in which the evidence shows that whilst the charter was obtained under a certificate signed by them that one-half of the capital stock amounting to $10,000, was actually paid in, yet in fact only $3,000 was so paid. Under this proof the corporation, in a proper proceeding by the State, might have been ousted 'of its franchise.
And under this proof these directors would be liable
In 1897 the General Assembly passed an act amending our law as to voluntary assignments by conferring upon assignees in such proceedings rights and powers which they had not before possessed. [Laws 1897, p. 38; E. S. 1899, see. 365.] That act is not now before us for consideration, or construction, -as it can not affect the rights of these parties in the matter now in controversy, because the assignment under which this plaintiff derives his authority was made in 1894. And even if that act were susceptible of a construction that would give the additional powers conferred to then existing assignees (as to which we give no opinion or intimation) it could not apply to this suit because it was passed after the suit was begun and after the judgment in question was rendered.
Under our assignment law as it was before the act of 1897, the assignee took only such title, either as to property or rights as the assignor had to bestow; as it is expressed in one of our early decisions, he stood in the shoes of the assignor, with the assignor’s rights and powers, neither more nor less. [State to use of Phillips v. Rowse, 49 Mo. 586; Roan v. Winn, 93 Mo. 503; Jacobi v. Jacobi, 101 Mo. 507.]
If, therefore, the corporation before the assignment could have maintained this suit, the plaintiff may do so, otherwise not.
A corporation may sue a stockholder to recover a balance due on his stock subscription made in contemplation of the incorporation, and we are cited to decisions which hold that that right passes to the -assignee of a corporation and he may maintain such a suit. Of such decisions are Shockley v. Fisher, 75 Mo. 498; Haskell v. Worthington, 94 Mo. 560, and other cases referred to in appellant’s brief. The correctness of .those decisions are unquestioned, but they have no
Whalt the plaintiff really relies upon is that which he conceives to be the conclusiveness of the receipt of the money acknowledged in the articles of association signed by the defendants. The argument is that defendants having organized the corporation on the faith of that recital it would he a fraud on creditors to allow them now to dispute its truth. And that argument would he unanswerable if creditors who had been misled by it were here suing.
The only ground upon which it is claimed that the acknowledgment or recital is conclusive, is that of estoppel. In Bales v. Perry, 51 Mo. loc. cit. 453, it is said: “The courts all concur in this, that no man can set up another’s act or conduct as a ground of an estoppel unless he has himself been misled or deceived by such act or conduct; nor can he set it rap when he knew or had the same means of knowledge as to the truth of the statement as the other party. The primary ground of the doctrine is, that it would he a fraud on a party to assert what his previous conduct had denied, when on the faith of that denial others have acted. The element of fraud is essential either in the intention of the party estopped, or in the effect of the evidence, which he attempts to set up.” If further authority is needed -to sustain this proposition, the following are some of the cases in our own hooks: Spurlock v. Sproule, 72 Mo. 503; Acton v. Dooley, 74 Mo. 63; Blodgett
One of the grounds assigned as error is that the court on cross-examination of plaintiff’s witness permitted him over objection to testify that only $3,000 of the capital stock had been paid in. Viewed as a mere receipt of written acknowledgment of so much money in hand, -in the absence of elements of estoppel, the recital in the articles of association was only prima facie evidence and disputable with oral testimony. [Bigelow on Estoppel (5 Ed.), 471, et seq.; State ex rel. v. Branch, 112 Mo. 661.] The evidence was entirely incompetent. The only criticism that might have been made upon it was that it was an unnecessary repetition of what the witness had already stated in his examination in chief, and 'as the whole record shows it was but a statement of an undisputed fact, the trial court took the correct iew of the law. There was nothing in the evidence upon which a verdict for the plaintiff could have been predicated. The judgment of the circuit court is affirmed.