Liberty Savings Bank v. Otter View Land Co.

| Va. | Sep 15, 1898

Harrison, J.,

delivered the opinion of the court.

The object of this suit is to wind up the affairs of an insolvent land company, and apply its assets to the payment of debts. The amended and supplemental bill brings the stockholders before the court, and asks for a decree against them for the balance due upon the shares of stock held by each. The appellees each answer under oath and deny that they made any contract in writing to take stock in the company, or authorized any one to make such a contract for them, and plead the statute of limitations, applicable to verbal contracts, as a bar to any recovery against them.

The only question, necessary to be decided, is whether or not this defence is sufficient to defeat the claim asserted against the appellees.

The several pleas and answers put the burden upon appellant to prove that appellees had bound themselves by a contract in writing to take the stock. There is no evidence that any one of those sought to be held liable ever made such a contract. Their names appear on the books of the company, and the evidence tends to prove that appellees are the owners of the stock charged to them. It is not, however, a question of ownership, but whether the contract to become owner was verbal or written. Ho original lists are produced; the names on the books are not in the handwriting of appellees, and the evidence all tends to show that the several subscriptions appearing on the books were based upon verbal contracts, and that appellees made no contract in writing to take the stock, or to become the owners thereof.

The defence is based upon the provisions of the statute limiting the period within which suits shall be brought upon verbal contracts. Section 2920 of the Code provides that no-action shall be brought upon a verbal contract unless within three years from the time the right of action accrues. In the case at bar, the right of action accrued June 10, 1898, when •the decree was entered calling upon the stockholders to pay the balance due upon the several shares of stock held by each, and authorizing the receiver to collect the same by suit or otherwise. The amended and supplemental bill making the stockholders parties, and asking for a decree against them, was not filed until March 31, 1897, more than three years after the right of action accrued. There being no evidence of a written contract to take the stock in question, and the suit to enforce payment having been instituted more than three years after the right accrued, the right to recover is barred,, under the express terms of the statute relied on by the appellees.

The Circuit Court having so held, its decree must be affirmed.

Affirmed.