24 S.W.2d 925 | Ky. Ct. App. | 1930
Affirming.
The Hatcher-Powers Shoe Company, appellee here, instituted this suit on the 28th day of September, 1922, in the Carter circuit court, in which it sought to recover from appellant, J.F. Lewis, the sum of $1,500, with interest thereon alleged to be due on account of subscription to the capital stock of the plaintiff. Answer was filed, in which numerous defenses were interposed:
(1) That there was no corporation legally organized. *56
(2) That appellant at no time subscribed to the capital stock by signing or authorizing any one to sign the contract sued on.
(3) That it was not created or organized as the result of any such subscription.
(4) That no payment was demanded on the 23d day of April, 1920, or at any other time.
(5) That $100,000 of the capital stock had not been in good faith subscribed.
(6) That no assessment was made against him on any such contract or subscription.
A separate paragraph pleading fraud and alleging it was falsely represented that Jeff Newberry and Chilt Holbrook were stockholders and that James Hatcher had 249 shares. The trial court properly sustained a demurrer to this separate paragraph. Hatcher-Powers Shoe Co. v. Bickford et al.,
As to the second contention that appellant at no time subscribed to the capital stock by signing or authorizing any one to sign the contract sued on, we have the positive testimony of Mr. H.W. Hatcher, and also the positive testimony of Mr. O.P. Powers, that appellant did sign this subscription contract. This is also supported by the positive testimony of Mr. John W. Wood, who drew the subscription contract, prepared the articles of incorporation, and was present when the directors and officers were elected. His testimony was positive that he (Mr. Wood) has signed this paper prior to the organization of the corporation, and that the name of Mr. J.F. Lewis, appellant here, appeared on the list as having been signed before the signature of Mr. Wood. Also the positive testimony of Mr. J.F. Stewart that he was present at the first meeting of the stockholders held at Mr. Wood's office; that Mr. Wood was one of the stockholders; and that Mr. Lewis' name appeared on the list ahead of Mr. Wood. While, on the other hand, the testimony of appellant denies that he signed this list, but, taken as a whole, this is a rather feeble denial, because he states that he does not remember of signing any paper. However, in his amended answer he says: "He further alleges that he did authorize the signature to the said paper sued on here subsequent to the first of July, 1920." This record shows conclusively that after the name of appellant on the first page of the subscription contract we find the name of Dewitt Steele, Rosena Casner, and Clayton S. Hitchens. This court held Hitchens liable on this subscription contract in which many defenses were asserted similar to the case at bar. In Hatcher-Powers Shoe Co. v. Hitchens,
As to his third contention that the corporation was not created or organized as the result of any such subscription, this record shows that all of the subscribers entered into this subscription contract for the purpose *58 of organizing this corporation; they were to put their money into one common cause. In our opinion this contention is likewise fully settled adversely to appellant's claim in the Bickford case and the Hitchens case, supra.
As to his fourth contention that no payment was demanded on the 23d day of April, 1920, or at any other time, this record shows that appellant's name was on the subscription list, and the testimony shows that all of the subscribers were notified by the secretary. Appellant's answer to that is that he does not remember getting any letters except one, to which he replied on May 6, 1921. In this letter, addressed to Hatcher-Powers Shoe Company, appellant says: "That your request for payment of stock is refused for several reasons I have before stated that you just as well discontinue your request." We are convinced from this record that appellant's subscription was accepted by the corporation, and that payment was demanded.
As to his sixth contention, that no assessment was made against him on any such contract or subscription is equally unavailing. All of these subscribers to the capital stock were to put their money into one common cause. The venture was unsuccessful. The appellant is liable for the full amount subscribed. When the corporation has collected from the unwilling solvent subscribers and all debts are paid, the residue of its funds, if any, may by proper procedure be distributed among all of the stockholders.
It is earnestly insisted by appellant that the court erred to his prejudice in transferring this case to the equity side of the docket. In the case of Riffe Jones v. McKinney Deposit Bank,
The judgment is affirmed. *59