89 So. 297 | Ala. | 1921
The original plaintiff in this cause was the Citizens' Loan Savings Company, a corporation, and the declaration was upon a promissory note executed by defendant, appellee, and made payable to plaintiff. Afterwards the original plaintiff was adjudged a bankrupt, whereupon, and upon proper suggestion, the cause was revived in the name of appellant as trustee of the bankrupt estate of the corporation. Pleas (C, E, F, G, H, I, and K) were then filed by the defendant, alleging, to set forth their effect in brief, that the note in suit had been given for stock of the corporation with the understanding that it was to be paid for out of commissions to be earned by defendant by sales of the stock of the original plaintiff corporation, and not otherwise, and that the contract so evidenced was null and void, as being prohibited by section 234 of the Constitution, providing that —
"No corporation shall issue stocks or bonds except for money, labor done, or property actually received; and all fictitious increase of stock or indebtedness shall be void."
Demurrers to these pleas being overruled, substituted plaintiff suffered a nonsuit, reserving the questions so raised for the decision of this court. Code, § 3017. Rulings by which demurrers were sustained to several special replications (2, 3, 4, and 5) were in like manner reserved for review.
Substituted plaintiff, proceeding in the name and stead of original plaintiff, had no better right than original plaintiff. Our understanding of the brief filed for appellant is that the trustee bases his right to recover on the theory that he stands in the shoes of creditors of the bankrupt corporation, and that such creditors would be entitled to reach and subject to the satisfaction of their claims the indebtedness evidenced by the note without embarrassment from the condition upon which the parties to the note made its obligation to depend. Whatever creditors, or the trustee representing them, might do by way of a bill in equity, it is manifest, we think, that the trustee cannot maintain the action in this case, for the reason that the corporation itself could not maintain it.
In Nicrosi v. Irvine,
The foregoing conclusions, going to the root of plaintiff's case, answer every assignment of error. It follows from what has been said that demurrers to the replications were properly sustained. They advanced nothing material in the way of reply. Nor was there error in overruling the motion to strike plea "F" as frivolous — a ruling not noted in our preliminary statement of the case. So far from being frivolous, the plea, under our view of the law, states a perfect defense. Nor was this plea objectionable by way of motion or demurrer on the ground that it stated the mere conclusion of the pleader. It stated an ultimate fact, viz., that *93 the stock for which the note in suit was given was not issued for money, labor done, or property actually received, and from this fact the pleader, in agreement with the law, concluded that the note was void. It results that the judgment of the trial court was correct in all respects.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.