51 Mo. App. 198 | Mo. Ct. App. | 1892
This an action for $1,500, the amount of defendant’s subscription to the stock of the Savannah Savings Institution, of which the plaintiffs are its assignees under a deed of assignment. The issues were tried before the circuit court without a jury, where there was a finding and judgment in plaintiffs’ favor, and defendant has appealed. For a full understanding of the nature of the controversy it is necessary to state the following facts: In the year 1865, a banking corporation by the name of the Savannah Savings Institution was created by special act of the legislature. Its prescribed capital stock was $10,000, and its term of incorporation limited to twenty-five years. The institution conducted its business at Savannah, Missouri, till March, 1888, when in view of its early demise a new banking incorporation, with the same name as the old one, was organized under the general law then in force, with a stated capital of $20,000. Defendant Harvey was a holder of $1,500 of stock in the old bank, and was one of its three board of directors, and on March 18, 1888, he subscribed for a like amount in the new
This new banking corporation continued business under its new incorporation until the twenty-ninth day of May, 1889, when it was unable to continue business because of insolvency, and, therefore, made an assignment of all its property and effects to the respondents as assignees thereof, for the benefit of all its creditors. The assignees, plaintiffs herein, treated the stock in the new corporation as unpaid and demanded of defendant Harvey and others the payment of their subscriptions. Harvey refused to pay, and, hence, this suit. The defense in this cause is that appellant. surrendered his certificates of stock in the old corporation, and took certificates of stock for like sums in the new corporation, and in law that was a payment of his subscription of $1,500 sued for in this action.
“April 7, 1888.
“At a meeting of the directors of the Savannah Savings Institution, held at the banking house of said institution in the city of Savannah, Andrew county, Missouri, on the seventh day of April, 1888, there being present John McLain, Greorge W. Harvey and LaEayette McLain, being all of such directors.
“It appearing to the directors that John L. McLain, Greorge W., Harvey, LaEayette McLain, A. E.*204 Daily and Charles M. Daily have associated themselves under articles of association, and have become a banking institution, to be incorporated under the laws of the state of Missouri, under the name of the ‘ Savannah Savings Institution,’ with a capital stock of $20,000, to succeed this corporation, and for the purpose of doing a banking business of deposit and discount in the city of Savannah, county of Andrew, state of Missouri.
“It is, therefore, ordered that the certificates of stock held by each one of said parties in the old and present Savannah Savings Institution be taken up and retired, and that certificates of stock for like sums and amounts be issued to each and every one of said parties in the new incorporation.
“The Savannah Savings Institution, “John McLain,
“Q-. W. Haevey,
“LaFayette McLain.
“April 7, 1888.”
This now, on its face, appears to have been a proceeding by the officers of the old bank, and they assume there to dispose arbitrarily of the assets of the new corporation. But whether defendant Harvey and the two McLains were then and there acting as and for the expiring defunct corporation, or in behalf of both institutions, the effect is the same. If they, as directors of the old concern, sought thus to dispose of the assets of the new and distinct corporation, their action was void; and if they occupied a dual relation — that is, as officers of both banks, it was an effort to give away or rather to take unto themselves the assets of the principal whose agents they were. In the last supposition these directors were in this manner without right or authority resolving their obligations for stock subscribed to have been paid by the surrender of stock they held in another corporation.
After a careful consideration of every point made in defendant’s brief, we fail to discover any reason for disturbing this judgment. It is, therefore, affirmed.