104 Neb. 139 | Neb. | 1920
Action by the receiver of an insolvent corporation against stockholders upon an alleged statutory liability for failure of the directors to publish an annual statement of the financial condition of the corporation. A judgment was rendered as prayed. Certain stockholders appeal.
The corporation never published any statement of its indebtedness. The allowed claims exceeded the assets of the corporation over $14,000. The receiver made an assessment against the stockholders upon their statutory liability for an amount sufficient to pay the debts and the expenses of the receivership. Six of the defendants filed a separate answer consisting of a general denial; an allegation that the indebtedness of the corporation to the First National Bank of Genoa, Nebraska, was contracted prior to. the failure to publish the annual statement of indebtedness; that four of the alleged creditors have always been and still are stockholders of the corporation; that the money loaned by them was loaned at a time when they knew that the notice had not been published, and that they are now estopped from asserting any claim in equity against the defendants. The reply is a general denial. The case was tried on a stipulation of facts which shows: That the indebtedness to the First National Bank of Genoa was originally incurred in October, 1911, which was before the corporation was in default of notice; that the debt was evidenced by a promissory note for $6,0(.)0, payable in six months; that the original indebtedness was afterwards renewed from time to time without additional money being advanced or loaned, new notes being given
The general rule is that a note taken for a pre-existing debt will not discharge the original cause of action, unless it is taken in payment of thé debt by agreement. The renewal of a note by giving a new note does not pay the original debt, and, unless it is so agreed, it does not pay the original indebtedness, and does not create a new indebtedness. Harvey v. First Nat. Bank, 56 Neb. 320, 334; Leschen & Sons Rope Co. v. Mayflower Gold Mining & Reduction Co. 173 Fed. 855, 35 L. R. A. n. s. 1; Griffin v. Long, 96 Ark. 268, 85 L. R. A. n. s. 855.
The recitation in the stipulation that the “original indebtedness” was renewed must be taken to mean that the original indebtedness continued its identity although successive notes were given to evidence its renewal. We have repeatedly decided that stockholders are not liable under the statute for debts incurred before the corporation was in default in publishing the notice. Smith & Crittenden v. Steele, 8 Neb. 115; Howell Bros. v. Roberts, 29 Neb. 483; Singhaus v. Piper, 103 Neb. 493.
In Singhaus v. Piper, supra, it is held that a creditor stockholder is not entitled to recover under this penal provision because he is equally guilty with the other stockholders, citing cases. We are content to abide with that decision, and therefore hold that the inclusion of the debts to such stockholders in the judgment was erroneous.
Reversed.