21 S.E. 951 | N.C. | 1895
The theory upon which the plaintiffs, in their complaint, seek equitable relief, rests upon the idea that the directors of the defendant corporation are trustees, in the most comprehensive sense, for them, that the assets of the corporation are a trust fund in the hands of the directors for their benefit, and that therefore in this action they can have an order against the defendant Burgwyn for a payment into court of funds in his hands as treasurer, to be applied to such judgment as the plaintiffs may recover against the defendant corporation. The argument of Mr. Hicks for the plaintiffs was able and ingenious, but it failed to satisfy us of the correctness of the plaintiff's position. The relation between a creditor and a corporation, solvent or insolvent, is simply that of creditor and debtor, and where the law-writers and the courts have used the words "trust fund" in connection with the assets of an insolvent corporation, it has not been intended to mean that there is a direct and express trust attached to the property. The assets are not in any true and complete sense trusts. 1 Pomeroy Eq. Jur., sec. 1046. In Hill v.Lumber Co.,
The judge below properly overruled the second conclusion of law of the referee allowing the counterclaim of the defendants set up in their amended answer. Upon the facts found by the referee the defendant, as a matter of law, was not entitled to it. According to the referee's finding, the counterclaim embraced a transaction not connected with the subject of the action, the plaintiff had no connection with it, nor ever had, and it was for a tort against other persons than the plaintiffs.
All of the exceptions filed by the defendants to the findings of fact by his Honor were filed too late. They were not put in until after the court had adjourned for the term. Battle v. Mayo,
Modified and affirmed.
Cited: Howard v. Warehouse Co.,