40 Ga. 98 | Ga. | 1869
The charter of this company contains no individual liability clause, and no general statute of this State imposed any such liability, when the charter was granted. And we hold that it was not in the power of a majority of the stockholders, by any by-law which they might pass, to impose any such liability. This very question is decided by the Supreme Court of Massachusetts in the Trustees, etc., vs. Flint. 13 Metcalf Reps., 539. In that case the charter imposed no personal liability npon the stockholders. But under the usual power given for that purpose, the stockholders met, and enacted bylaws, of which the following was one : “ The members of this association pledge themselves in their individual, as well as their collective capacity, to be responsible for all moneys loaned to this association and' for repaymeilt of which the treasurer may have given his obligation, agreeably to' the direction of the directors.” This by-law was printed and distributed by the corporators.
John Fjint, as the treasurer, afterwards executed the note sued upon, under this by-law. Judgment was obtained against the corporation and execution issued and was returned “wholly unsatisfied.” Suit was then brought against Flint as a stockholder, and the Supreme Court of Massachusetts held that he was not liable. They say: “ It is not, in the opinion of the Court, within the- powers conferred upon this and similar corporations, to impose upon their members, by any such by-law, any personal and individual liability to third persons, beyond such as are specified in the-charter, or in the general laws of the commonwealth. Such a power would be liable to great abuse, and would subject any member of a corporation, however liberal its charter, in excluding individual liability, to be made responsible for the entire indebtedness of the corporation.” The Court adds: “The proposed evidence (of the declarations of the defendant that such liability existed) would therefore be inadmissible on the trial, of this case before the jury; as it would not tend to change the defendant. Whether for such false representations he
2. Upon the other question made by this record we are also well satisfied. There is no allegation, by complainants, in the bill, that the corporation was insolvent when the dividends were made, or that there was any fraud or collusion to their injury. At that time the company was doing a profitable business, and the property held by them as capital stock was amply sufficient for the payment of all the indebtedness' of the corporation. The dividends were no doubt made in good faith, without any intention to defraud or injure creditors, and made at a time when creditors were by no means anxious to receive the only currency of the country (Confederate Treasury notes) in payment'of the debts due them. Afterwards the factory was burnt, during the war, by General Sherman’s army, which reduced the company from a high state of prosperity to hopeless insolvency. Under these circumstances, we hold that creditors have no right to compel the stockholders to refund the dividends for their benefit.
The capital stoch was a trust fund for the payment of the debts of the corporation, upon the faith of which alone the law presumes the credit wat given, unless other security was taken at the time by the creditor. In the case of Wood et. al., vs. Dummer et. al., 3 Mason’s Reports 311, Mr. Justice Story says : “It appears to me very clear, upon general principles, as well as legislative intention, that the capital stoch of the Bank is to be deemed a pledge or trust fund for the payment of the debts contracted by the bank. The public, as well as the legislature, have always supposed this to be a fund appropriated for such purpose. The individual stockholders are not liable for the debts of the bank in their private capacities. The charter relieves them from personal responsibility and substitutes the capital stock in its stead. Credit is universally given to this fund .by the public as the only means of repayment.” The same rule which applies to a bank is applicable to any other corporation. Again Judge Story
The same doctrine is held by Judge Lumpkin in Hightower vs. Thornton et. al., 8 Georgia 500, wh ere he says: “ The capital stocky of a corporation, like that of a limited partnership, or joint stock company, under the Act of this State, of 1837, (Hotchkiss, 373) is the amount fixed upon by the partners or associations, as their stake in the concern. Upon this they get credit and transact business. It may not all be actually paid in, still they are liable to the public for the amount thus fixed. Additions on the other hand may be made to the original stock, by a successful prosecution of the business, still these profits do not constitute capital.”
We are satisfied this bill is not maintainable upon either of the grounds taken. If any of those who constitute the stockholders of this company have been guilty of fraudulent misrepresentations in procuring credit for the corporation, they are liable in a proper form of action, as individuals, to any one injured, just as they would be for like fraud in any other matter; but they are not liable, as stockholders, under this by-law, for the debts of the corporation, nor are they liable to refund the dividends received by them, under the circumstances detailed by this bill, for the benefit of creditors. They must look to the corporate property — the capital stock — for satisfaction, and to such other personal security as they may have taken for their better protection.
Establish the rule that creditors may compel the stockholders of an insolvent corporation to refund dividends received in a fair course of business and no man would be safe in holding stock. At the time the dividends .are made, the corporation may be in a prosperous condition, as was the case here, and a stockholder may receive the dividends in good faith as the legitimate incomes of his capital, and after he has sold his stock and ceased to have any interest in the company, some calamity may befall the company, which may cause its insolvency, and creditors, under the rule contended for, may
But we will not say that in a proper case, where the corporation is insolvent, and the capital stock, upon the faith of which the credit was given, has become insufficient for the payment of the debts of the company, a ease might not be made where a Court of Equity would enjoin the payr&ent of future'dividends to the stockholders, till the debts are paid. Nor do we question the right of the creditors, in a Court of Equity, to compel stockholders to refund dividends made to them out of the capital stock itself. The whole capital stock is a trust fund for the payment of the debts contracted upon the faith of it, which the stockholders can not divert from that object, by distributing it as dividends, or otherwise dividing it among themselves.
3. In reference to the rent claimed by these creditors, for the use of the factory, during the year when it was run by part of the stockholders, under the name of the Putnam County Manufacturing Company, we have only to remark, that if anything is due the company, a judgment creditor has an ample remedy at law, and can reach it by process of garnishment.
Let the judgment be affirmed.
