142 Ga. 789 | Ga. | 1914
Lead Opinion
(After stating the facts.) The plaintiff’s right of action is expressly grounded on the Civil Code (1910), § 2220, which declares that “persons who organize a company and transact business in its name, before the minimum capital stock has been subscribed for, are liable to creditors to make good the minimum capital stock with interest.” The plaintiff sustained no contractual relation to the corporation which was alleged to have commenced business before all of its minimum capital stock had been subscribed. If he has any action against the corporation, it must be founded in tort; for the alleged conversion and appropriation of the plaintiff’s property was without his consent. The proposition raised by the demurrer is, whether the plaintiff is a creditor of the Senoia Duck Mills within the meaning of the quoted code section. This is a codification of the principle enunciated in Burns v. Beck & Gregg Hardware Co., 83 Ga. 471 (10 S. E. 121). In that case two persons after procuring a charter organized a corporation without subscribing the minimum capital stock or paying in the ten per cent, required by statute, then proceeded to business, contracted debts, and made a fraudulent assignment of the corporate assets. Creditors of the corporation filed an equitable petition against the two organizers of the corporation and the corporation, to set aside the assignment, and to hold liable the corporators as well as the
It is contended, however, that the word “creditor,” as used in the code section, comprehends any person to whom a debt is owing by another, whether the debt arise by virtue of a contract or grow out of a trespass or tort. We do not think, in the light of the origin of the code section, and the basis upon which the principle of liability is evolved, that corporators of a de facto corporation are liable for the torts of the corporation. In most jurisdictions persons who assume to act as a corporation, when they have neither de jure nor de facto corporate existence, are held to sustain the relation of partners as to third persons, and are individually liable as such, both for torts committed and on contracts made by their agents in the course of the business, unless the person dealing with
A somewhat similar question arose in Nebraska. A statute of that State required every corporation thereafter created to give notice annually, in certain newspapers, of the amount of all existing debts of the corporation, and declared that in ease any corporation should fail to comply with that provision, the property of all the stockholders was to be liable for the corporate debts; and it was held that the debts referred to were debts arising upon contract, and not damages for torts. Doolittle v. Marsh, 11 Neb. 243 (9 N. W. 54).
The argument is advanced, that, inasmuch as this court has de
After a careful consideration, we think the construction given this statute in John V. Farwell Co. v. Jachson Stores, supra, does not embrace a claim of one whose liability against the organizers of the corporation is founded solely in the corporation’s tort.
Judgment affirmed.
Dissenting Opinion
dissenting. I can not agree with the conclusion reached by the majority of the court. The decisions are not in perfect harmony on the subject of whether a statutory liability of stock: holders includes a liability for torts of the corporation. The rulings depend very much upon the particular statutes under consideration and the language employed in them. 4 Thompson on Corporations, §§ 4853-4854. By § 2220 of the Civil Code (1910) of this State it is declared: “Persons who organize a company and transact business in its name, before the minimum capital stock has been subscribed for, are liable to creditors to make good the minimum capital stock with interest.” Section 3215 declares: “Whenever one person, by contract or by law, is liable and bound to pay to another an amount of money, certain or uncertain, the relation of debtor and creditor exists between them.” It would seem that a reading of these two sections together ought to settle the question; one declaring a liability to creditors, and the other declaring who are creditors. It is true that in some of the cases which have been adjudicated, the creditors who sought to enforce the liability, and in whose favor it was declared, were creditors who became such by contract ; and in the discussion reference was made to persons contracting with a de facto corporation, relying on the faith of its being a corporation; and it was said that it would be a fraud on them to allow persons to set the purported corporation in motion without the minimum stock having been subscribed. But I think the real underlying reason for holding such persons liable is that the statute requires that the capital stock shall be stated in the application for a charter, so that the world may know what it is; that it is unlawful to organize a corporation and put it in operation without such minimum capital stock having been subscribed; that if stockholders do this, relatively to creditors they must make good the deficiency which they have thus unlawfully created. I do not think that the law intended that people could set a de facto corporation in motion with a very small part of the minimum capital subscribed, or, for that matter, without any subscription at all, commit torts in its name, and for which it was liable, and say to the injured persons, you must look to the corporation, and we are not liable to make good the stock up to the minimum required by law. Nor do I think that the reliance which the person contracting with the de facto corporation might place upon its minimum capital stock covers the
Concurrence Opinion
specially concurs in the ruling announced in the headnote, but not in all of the reasoning set forth in the opinion.