175 Ind. 332 | Ind. | 1910
Appellant’s complaint is in four paragraphs. The first two are grounded upon a claim of statutory liability as stockholders in an insurance corporation, claimed to have been organized under the act of January 14, 1850 (Local Laws 1850 p. 30) as amended February 22, 1893 (Acts 1893 p. 133); the last two, upon a liability as copartners in an association of persons claiming to be incorporated, wherein actual incorporation was not effected; and hence a liability is claimed as of a copartnership. Demurrers were sustained to the first, third and fourth paragraphs, and overruled as to the second, upon which a trial was had, a special finding of facts made, conclusions of law stated, and judgment rendered for appellees.
Errors are here urged on the ruling on the demurrers to the first, third and fourth paragraphs of the complaint, upon exceptions to the conclusions of law, and in overruling the motion for a new trial.
The facts found show the enactment of the statute of 1850, supra, and that in 1891 defendant McGilliard, for a valuable consideration, purchased and took an assignment from one McCulloch, a son and. heir of Hugh McCulioch, who was one of the grantees in said charter, of whatever interest said McCulloch might then have in said charter as a son and heir of said Hugh McCulloch; that McGilliard had no knowledge of any of the other parties named in said charter, or of their heirs or assigns, and at the time no corporation was in existence, or doing business under said charter, nor had any corporation prior to that time transacted any business under said charter; that McGilliard and a number of other persons attempted to organize a corporation for the purpose of doing an insurance business under said charter, by virtue of the authority and rights obtained through said assignment, and established themselves as an insurance company, under the style of “The Indiana Insurance
The facts are found as to the ownership in plaintiff of the property insured, the issuance of the policy April 4, 1903, the loss by fire May 15, 1903, and a loss to plaintiff of $500, the appointment of a receiver in the Lake Superior Court, July 15, 1903, of the assets of the Equitable Insurance Company of Indiana as an insolvent corporation; that on July 3, 1906, plaintiff filed his claim for damages in the receivership proceedings, and the claim was allowed; that there were no assets at any time in the hands of the receiver out of which the claim could be paid; that no attempt was at
Charles E. Dark died since the commencement of the suit, and W. W. Dark, as administrator of his estate, was substituted in his stead. Defendants Christian, Charles E. Dark, W. W. Dark, Edward E. Dark, McGilliard, Hackedorn, Holman and Wagner participated in the meetings of the stockholders and were elected officers, such as president, secretary, assistant secretary, and directors in the company, prior to the dates when they sold their common stock, and each received dividends upon the preferred stock held by him.
Upon these facts the court concluded that plaintiff was not entitled to recover against any defendant.
Many conflicting cases are presented in the books arising upon special facts, which it would be impracticable to review, or to state the grounds of, except one case in this State—Coleman v. Coleman (1881), 78 Ind. 344.
We do not deem it essential to this inquiry to determine under the facts found whether there was any corporation formed under the act of January 14, 1850. Local Laws 1850 p. 30. We point out, however, that this act is quite different from the act reviewed in the case of Stoops v. Greensburgh, etc., Plankroad Co. (1857), 10 Ind. 47, for in that case certain specifically named persons were constituted a corporation, while in this case, certain persons are named as commissioners to receive stock subscriptions, and are not incorporators, but it does not follow that a corporation may not have been formed either with or without their intervention. Judah v. American, etc., Ins. Co. (1853), 4 Ind. 333.
All the appellees except McLain are shown to be preferred stockholders, and he is shown to be a pledgee, and his relation to the corporation is governed by the general laws of the State, by which the pledgee of stock is not liable as an owner. §4052 Burns 1908, §3008 R. S. 1881.
There is no fraud nor lack of good faith found that would invoke an equitable estoppel by which appellees should be charged as partners. The only element that is wanting is an attempt to organize under a valid law; but the supposed corporation had been long acted upon before plaintiff contracted with the Equitable Insurance Company. It had received legislative recognition, and had been acquiesced in by the State, and appellant had dealt with it with no other idea than that it was incorporated, and with no idea of a partnership. Gibbs’s Estate (1893), 157 Pa. St. 59, 27 Atl. 383, 22 L. R. A. 276; Ward, v. Brigham (1879), 127 Mass. 24; American Salt Co. v. Heidenheimer (1891), 80 Tex. 344, 15 S. W. 1038, 26 Am. St. 743; Finnegan v. Noerenberg (1893), 52 Minn. 239, 53 N. W. 1150, 38 Am. St. 552, 18 L. R. A. 778; Rutherford v. Hill (1892), 22 Ore. 218, 29 Pac. 1038, 29 Am. St. 596, 17 L. R. A. 549; Merriman v. Magiveny (1873), 12 Heisk. (Tenn.) 494; Cannon v. Brush Electric Co. (1902), 96 Md. 446, 54 Atl. 121, 94 Am. St. 584.
We think there is no harmful error shown, and the judgment is affirmed.