116 Neb. 14 | Neb. | 1927
Mary Schueth and Charles M. Schueth brought this action against the Farmers Union Milling & Grain Company, a cooperative corporation, to recover a balance claimed to be due upon a promissory note for $10,000 executed by the defendant on February 15, 1922. The note was payable to Mary Schueth or Charles M. Schueth on demand and drew interest at 8 per cent, from date. It was alleged in the petition that on April 11, 1923, $800 was paid upon the note, paying the interest thereon up to February 15, 1923. It wa‘s further alleged that the plaintiffs were indebted to the defendant for merchandise purchased in the sum of $604.35, which was a proper sum to be credited upon the note. The answer of the defendant admitted the execution of the note, the payment of $800 interest thereon, and the indebtedness of the plaintiffs for merchandise purchased. The defendant also claimed a further indebtedness for merchandise, owing by plaintiffs, which was not sustained by defendant’s evidence. The defendant, by way of set-off, pleaded that plaintiff Charles M. Schueth was the owner of 19 shares of stock in the defendant company; that an assess
The failure of the trial court to allow the defendant the amount of the assessments as a set-off against the note is the principal error complained of.
It appears that in 1914 the defendant was organized as a cooperative corporation under the laws of the state pertaining to corporations of that character. On March 16, 1914, Charles M. Sehueth became the owner of ten shares of stock in the corporation, paying for the same $1,000, the full face value thereof, and certificate No. 48 was issued to him therefor. The certificate contained a recital as follows: “Nonassessable. Not transíerrable while holder is indebted to above named-company.” On February 25, 1915, Sehueth became the owner of seven shares of stock, paying full face value therefor, and Certificate No. 108 was issued to him, containing the same nonassessable clause.' On February 14, 1921, Sehueth became the owner of: two shares of -stock,
It was the contention of plaintiffs that there was no authority in law, in the articles of incorporation, or in the bylaws, which authorized the directors, or a majority of the stockholders, to levy an assessment upon the shares of stock issued by the corporation.
While the record is not entirely clear as to the assessment of $12 a share made in February, 1921, we think it a fair inference that the board of directors made the assessment, which was ratified by the holders of a majority of the stock at a subsequent stockholders' meeting. The second assessment, made January 29, 1923, was first recommended by the board of directors, of which plaintiff Charles M. Schueth was a member. Later, at a stockholders’ meeting this resolution was approved, the vote being 248 for and 54 against the assessment. The total number of outstanding shares of stock at the time was 433. The record fails to show how Schueth voted at the stockholders’ meeting.
There is nothing in our statute relating to corporations of this character, or in the articles of incorporation or bylaws, which would authorize an assessment upon fully paid shares of stock. The general rule is that, unless the corporate charter or the statute provides otherwise, a stockholder, the full par value of whose stock has been paid in, is not liable and cannot be made to pay any sum in addition thereto, as an assessment against his stock. This general rule was recognized in Enterprise Ditch Co. v. Moffitt, 58 Neb. 642, wherein it is held: “In the absence of statutory authority or power given by the articles of incorporation there can be no assessment against or on ‘paid-up’ stock of a corporation.” This rule has never been modified in this state'.
The defendant cites, and relies on, Mirage Irrigation Co. v. Sturgeon, 77 Neb. 175. In that case, however, there was an indorsement upon the stock as follows: “This stock
Defendant argues that it would be manifestly unfair for plaintiff Schueth to avail himself of the benefits of an assessment paid by other stockholders, and at the same time refuse to pay the assessment against his own stock. We fail to find anything in the record which sustains the contention that any . stockholder paid any part of the second assessment. There is some proof from which an inference might be drawn that some payments were made on the first assessment.
As to the first assessment, Schueth claims the cause of action is barred by the statute of limitations. This seems to be borne out by the record.
Assuming, but not deciding, that the by-laws were sufficient to authorize penalties upon stockholders, and give the corporation liens upon the stock for amounts owing to the company by the stockholders, such fact would not create personal obligations against the stockholders. It would merely give a lien upon the stock in favor of the corporation which could be enforced only against the stock itself.
Upon a review of the entire record, we are of the view that the trial court was correct in denying the set-off claimed by the defendant for alleged assessments upon Schueth’s shares of stock.
We have been unable to reconcile the amount of the judgment with our computations, but the amount is substantially correct and will not be disturbed. The facts in this case, we
No error appearing in the record, the judgment of the trial court is
Affirmed.