Love Manufacturing Co. v. Queen City Manufacturing Co., 74 Miss. 290

Love Manufacturing Co. v. Queen City Manufacturing Co.

74 Miss. 290 | Miss. | 1896

Lead Opinion

Cooper, C. J.,

delivered the opinion of the court.

The question involved in this case, as now presented, is not whether an insolvent corporation may, in good faith, prefer creditors, or whether the mere fact that two corporations, each having the same person as president of the board of directors,

*300and stockholders common to both, disables one to prefer the other, in good faith, as to a debt due it. These questions have been decided in this state. Arthur v. Bank, 9 Smed. & M., 394; Sells v. Rosedale Grocery Co., 72 Miss., 590. Nor is the question what preference may be given a director by a ‘ ‘ going 5 ’ corporation, not in the presence or the prospect of insolvency,- or even in that condition, if in' consummation of a promise made to obtain means to go on, in just and reasonable expectation of continuing operations successfully, and that if it became necessary for the protection of the creditor a preference would be given him. Nor is it a question as to a stockholder dealing with a corporation. Nor is it the case of an officer who advanced money or credit to the corporation, and was preferred by others of the governing body, without his being a factor in making such preference. Nor does the case involve the question in what sense and to what extent are corporate assets a trust -fund in case o’f the insolvency of the corporation, nor any other-of the numerous questions which might arise out of different circumstances in the dealings of corporations. The precise and only question now involved is, may the directors of an insolvent corporation prefer themselves, by devoting its assets to pay debts due them, or debts on which they are bound as indorsers for the corporation ? This question has not been before decided in this state, and we have no hesitation to announce that this cannot be lawfully done. To permit it would be to allow those intrusted with the governing power of a corporation to prefer themselves by their own determination and action — a proposition monstrous in the extreme, shocking to the moral sense, and wholly indefensible, as it seems to us. It is a mistake to suppose that in Sells v. Rosedale Grocery Co., 72 Miss., 590, it was held that the directors of an insolvent corporation could lawfully devote the property of such corporation to protect themselves against indorsements they had made. In that case it appears that a majority of the acting body of directors of the insolvent corporation had no interest in the *301bank which was preferred, and the sole point decided, in that aspect of the case, is that the debtor company was not disabled from preferring another by the fact that one man was president of both, and that there were persons who were stockholders in both — a widely different question from that here involved. Here the preference was resolved on and made by the active and potential participation of the beneficiaries of the assignment. By their own act they appropriated for their own benefit the available assets of the corporation of which they were the governing body.

If it be conceded that a corporation in failing circumstances may do what a natural person may, it would not follow that this preference could be upheld, for it was never heard that a natural person might prefer himself by an assignment, general or special, or otherwise. He may prefer others, but not himself. These directors, by their own will and act, preferred themselves, a thing -quite natural, but which the law cannot sanction. By their act they practically dissolved the corporation and put an end to its going, and appropriated its property to themselves, thereby destroying forever all chance of realization by other creditors from the continued operation of the corporation. We deem it unnecessary to cite the numerous cases which have more or less bearing on the question discussed. A large number of them have been collected and referred to in Commentaries on the Law of Corporations by Thompson (vol. 5, chap. 146) where quite a full discussion of the subject may be found,' and we content ourselves with this reference.

Decree reversed, demurrer overruled, and cause remanded, with leave to answer within thirty days after ma/ndate filed.

Concurrence Opinion

Whiteield, J.,

specially concurring.

In the result reached in the decision in this case, I entirely concur. But the expression in the opinion of the court to the effect that the question whether an insolvent corporation may *302make a preferential assignment has been decided by this court, would seem to be aside from decision in this case, and, as assented to, it would seem to commit us to that doctrine still. I write merely to say that, after the most careful investigation and the most mature consideration, I am thoroughly satisfied that all the cases in this state announcing the rule that an insolvent corporation which has ceased to be a going concern, may make, after such cle facto dissolution, arising from its having ceased to be a going concern, a preferential assignment, should be overruled and the doctrine repudiated. All the cases since Arthur v. Bank, 9 Smed. & M., 394, simply trace back to that; and yet, when the opinion in that case is considered, it is transparently clear that the reasoning of the opinion is meager, unsatisfactory, and unhelpful to the last degree. That case was decided in 1848, in (as contrasted with their present development) the comparative infancy of corporations. Fifty years of added judicial observation of the monstrous perversions of justice which constantly result from maintaining this doctrine have already had the effect of breaking most materially the then almost unanimous array of authorities upholding this pernicious doctrine; so that now, while it may be conceded that the numerical weight of authority still asserts the doctrine, an array of authorities not much less in mere number repudiate it. And when the disposition to adhere to the rule of stare decisis is considered, especially when the majority of the courts are to be confronted by the court taking the new view, it is not difficult to understand why courts which have (dealing with new conditions and new creations of our complex modern civilization, under the duty of pioneering their way with inadequate light) first erred should afterwards adhere to the error, seeking refuge in the fact that there have been such decisions, instead of keeping steadily in view the pole star by whose light courts should steer — the administration of justice and right — ■ and without sufficiently remembering (what the course of enlightened jurisprudence has, through its whole history, ill us*303trated) that to accomplish this fundamental purpose of the existence of courts of justice, the principles of law must be molded, in the evolution of social conditions and the development of the new agencies of civilization, so as to work out (in the exigencies confronting the courts, growing out of this development) justice and right.

I have thought it proper to observe so much, in deference to the case of Arthur v. Bank, supra, and the rule of stare decisis; not with any purpose of setting forth at large in this — a merely concurring opinion — the reasons which control my judgment. Those reasons may be found set out with profound ability by Judge Thompson in his recent great work on corporations (vol. 5, secs. 6494-6504, inclusive). In my judgment, this argument cannot be answered. It presents the reasoning with a force, completeness, and conclusiveness nowhere else to be found, and in sec. 6496 points out accurately the fallacy of the reasoning of courts upholding the doctrine. Says Judge Thompson: “Although an insolvent individual may turn over his property to certain of his creditors whom he desires to prefer, and may by so doing hinder and delay the others, yet he merely hinders and delays them; he does not by that act destroy himself; he still lives; and he may, and often does, get on his feet again, and acquire property, and discharge his previous obligations. But when a corporation becomes insolvent, and ceases to have the means of carrying out the objects of its creation, and dispossesses itself of all its property, it destroys itself, and becomes ipso facto, dissolved, and, in fact, is regarded as a dissolved corporation, for many purposes, having reference to the rights of creditors. An assignment for the benefit of creditors is, in point of fact and experience, an end of the corporation; and to this statement there is not one exception in a thousand cases, as every lawyer and judge knows. The corporation, after such a catastrophe, not only has nothing more for its unpreferred creditors, but it never will have anything more for them. Its act of exhausting its assets in pre*304ferring particular creditors, deprives the others of all remedy, unless in those cases where the law has left them the remedy of proceeding against its stockholders. When a corporation suspends business and makes an assignment, by reason of its insolvency, its situation is analogous to that of an individual debtor under a bankrupt law, which, upon his surrendering his property for the benefit of creditors, discharges him from any further liability for his debts. The individual is discharged de jure by operation of the statute of bankruptcy. The corporation is discharged de facto by operation of the natural laws of its existence. But the remedy of the creditor is not determined in the one case any more effectively than in the other. ’ ’ I refer also to the very ably-reasoned opinion in Conover v. Hull, 10 Wash., 673, s.c. 45 Am. St. Rep., 810. It is a significant fact, too, that all the modern text writers (Morawetz, Taylor, Wait, and others) sustain Judge Thompson’s view. And Mr. Freeman, who seems not entirely content with this view, says (45 Am. St. Rep., 832): i£ There can be no doubt that the doctrine that a corporation, when insolvent, cannot prefer any of its creditors, is gaining ground and finding support in the decisions of some of the courts where, imtil recently, there was substantial harmony” the other way. I confidently believe that when another decade of judicial observation of the pernicious results of this doctrine (the travesties of justice and outrages upon right flowing from its practical operation) shall have passed, the doctrine so long, so earnestly, and with such persistent faith in the ultimate triumph of principle and right, contended for by Judge Thompson, will be the established law of the land. For the ablest argument in support of the opposite doctrine I have anywhere met with, see the opinion of McClellan, J., in Jewelry Co. v. Volfer (Ala.), 17 South., 525, the reasoning in which, however, it seems to me, breaks down just where the stress of the argument is reached.