60 Kan. 164 | Kan. | 1899
The opinion of the court was delivered by
Clifford C. Baker was a stockholder in the Topeka Commercial Security Company, a Kansas corporation, against which Mary H. Pierce obtained a judgment for $2428.29. After the return of an execution unsatisfied she instituted a proceeding against Baker to enforce his statutory liability on the stock held by him in the corporation, and therein it was made to appear that Baker had paid the full face
The single question presented on this review is : May a stockholder in a Kansas corporation, who has paid the full face value of his stock, when proceeded against by motion for an order that execution issue against him, show, by way of set-off or defense, or in diminution or extinguishment of his liability as sxxch stockholder, that the corporation is indebted to him upon bona fide claims and demands which accrued before he became liable as such stockholder? It is strongly contended that the claims of the stockholder against the corporation do not constitute a legal set-off, because of a want of mxxtuality between the parties to the action. The claim of the stockholder is not,a set-off in its technical legal sense, but it is an equitable defense which he is entitled to make. . When he becomes a bond fide creditor of the corporation he is clothed with the same equity as contract creditors. Under our code the distinction between actions at law and suits in equity no longer exists, and it specifically provides that ££the defendant may set forth in his answer as many groxxnds of defense, countex’-claixns, set-off, and for relief, as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.” (Gen. Stat. 1889, ¶ 4177; Gen. Stat. 1897, ch. 95, § 94.)
Under our statute the liability imposed on stockholders is personal and several, and any creditor may institute an independent action against any stockholder for the enforcement of corporate debts. (Abbey v. Dry-goods Co., 44 Kan. 415, 24 Pac. 426; National Bank v. Magnuson, 57 id. 573, 47 Pac. 518; Cottrell v. Manlove, 58 id. 405, 49 Pac. 519.) Where the stat
The order of the district court denying the motion will be affirmed.