8 Mo. App. 496 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This is a proceeding, under the statute, by an execution creditor of the Illinois and St. Louis Bridge Company against McCluney as holder of one hundred and forty shares of stock of the Bridge Company on which fifty, per cent is not paid up. The judgment against the company is for $46,831, and was rendered in January, 1878. Notice of the application to the Circuit Court for execution against Mc-Cluney, on the ground that he was a stockholder on the return-day of the execution, was served in the following May. The facts under which the creditors of the company hold the stockholders liable are fully set forth in Skrainka v. Allen, 7 Mo. App. 434. Under our ruling in that case,
The question presented in this case is whether, in favor of a judgment creditor of the company, these shares are to-be held as partially unpaid as against McCluney, who confessedly had no actual notice that they were not fully paid up shares. That they should be treated as unpaid as to the-bonus stock and as to the amount received for the second-mortgage bonds whilst they remained in the hands of the original holder and party to the transaction, is already decided by this court, in the cases mentioned above. The-Circuit Court, in the case at bar, held that the position of' McCluney wa.s no better than that of the original holder. This, no doubt, is contrary to the English cases. In regard-to that, however, it is to be x-emarked, as we have already-said (Fisher v. Seligman, 7 Mo. App. 391), that the doctrine of Judge Story, that stock of a corporation is a trust-fund for the payment of creditors, though the accepted American doctrine, does not seem to be recognized in England; and that the theory of the English “Winding-up-Acts,” under which the English cases proceed, is essentially different from that of our statute, and of the various statutes in other States, giving to the creditor of the corporation a remedy against the stockholder. In England, the creditor can claim to be paid only out of the assets of the company, which the company itself has a right to bring into its assets and the creditor collects through the company by virtue of the rights of the company, and, generally, he is in no better-position than the company. But in America, generally, the-creditor may enforce a claim against a stockholder which.
But neither in America nor in England can á shareholder be held liable to a creditor of the corporation unless his liability arises either ex contractu or ex delicto, either by virtue of contract or of some misconduct or carelessness on his part by which another has been deceived to his hurt, so that the stockholder is estopped to say that in truth there was no contract. Unless McCluney, in the present case, was bound to inquire whether these shares were actually paid up, it is impossible to hold him liable. There is no dispute that he acted in good faith, that he believed the stock to be paid up, and that, as between the company and the original stockholder, it really was paid up. We do not know on what principle it is to be said that the person purchasing stock must suspect fraud. But, waiving that, what inquiry was McCluney to institute in this case, and from whom was he to seek information? We do not think he was bound to go beyond the compan}, and the company claimed that the stock was paid, and the books of the company would have shown him that the stock was fully paid.
We know of only one American case directly in point. Foreman v. Bigelow, 7 Cent. L. J. 430. The case was before Mr. Justice Clifford and Judge Lowell, district judge of the Eastern District of Massachusetts. The shares in that