54 Neb. 701 | Neb. | 1898
In 1887 there was organized in the city of Omaha, Nebraska, a corporation known as the Metropolitan Building & Loan Association. The general nature of the business which this corporation was organized to transact was to sell and buy real estate, to build, rent, and sell houses, to lease its property and borrow and loan money. The capital stock was fixed at $50,000, divided into shares of $1,000 each; the shares to be paid for in monthly installments of $12.50 each. In the district court of Douglas county, in 1890, John A. Yan Pelt and others recovered a judgment against said corporation. An execution was issued on this judgment and returned wholly unsatisfied. Yan Pelt and others then brought this action in the district court of Douglas county against William A. Gardner and others, the stockholders of said corporation, claiming, among other things, that they were largely indebted to the corporation for subscriptions of stock made by them and which subscriptions they had not paid. In other words, the object of this .action was, in effect, to compel each of the said stock subscribers to pay into court such a part of his unpaid stock subscription as would be sufficient to satisfy Yan Pelt’s judgment, interest, and costs. The plaintiffs below had a decree as prayed, and the parties made defendants below have appealed.
1. The first argument is that the action, when brought, was barred by the statute of limitations. The suit was commenced November 18,1893, and the appellants allege that the corporation was duly dissolved by a two-thirds vote of its stockholders February 5, 1889; that plaintiffs-’ cause of action accrued at that date and was barred within four years thereafter. When did the appellees’ cause of action accrue? Section 4, article 11 (Miscellaneous Corporations) of the constitution provides: “In all cases of claims against corporations and joint stock associations, the exact amount justly due shall be first
2. A second argument is that the findings of the distil ct court as to the amount that the appellants were indebted on their unpaid stock subscriptions are not sustained by sufficient evidence. There is no merit whatever in this contention.
3. A further argument is that the corporation was a necessary party to this action. But the appellees in this suit are not claiming anything against the corporation. They are not seeking to take its property, to divest it of any right it has, or to hold it liable in any manner whatever. The liability of the corporation to the appellees has already been determined by the judgment which the appellees hold, and they have exhausted their remedies against the corporation. We do not see that the making
4. A provision of the.articles of association of this corporation provided: “In no event shall the private property of the members of this corporation be liable for the indebtedness of this association.” A final argument, as we understand it, is that the appellants are not liable to the appellees in this action because of this provision in the articles of association. This provision of the corporation’s charter was and is absolutely void, in so far as it attempts to protect the stock subscriber from liability for his unpaid stock subscriptions for the debts of the corporation. This is more than the legislature itself could do; and, so long as section 4, article 11, of tlu
5. A section of the statute, under which the corporation of which the appellants were stockholders was organized, to-wit, section 2 of an act passed February 18, 1873, entitled “Homestead Associations,” being section 146, chapter 16, Compiled Statutes 1897, contained this provisión: “All stockholders of any such associa-
tion shall be deemed and held liable to any amount equal to their stock subscribed, or by them at any time held in addition to said stock, for the purpose of securing the creditors of said association.” By the decree in this case the district court made each of the appellants liable, not only for the amount unpaid on the stock subscribed for by him, but also for the full face value of the paid-up stock owned and held by him in the corporation. We think the decree in this respect was erroneous. This section 146' of the statute just quoted was passed in 1873, prior to the time the constitution of 1875 took effect. The constitution of 1875 determined the extent of the liability of stockholders of corporations organized under the laws of this state for the debts of such corporations. The constitution dealt with railway corporations, municipal corporations, banking corporations, and miscellaneous corporations. It fixed the liability of a stockholder in a banking corporation for the debts thereof at the amount of such subscriber’s unpaid stock subscription plus the amount of the face or par value of the paid-up stock held by him in such corporation. By said section 4 it fixed the liability of stockholders of corporations other than banking corporations at the amount of the stock subscribed for by the stockholders and un
6. The decree of the district court provided that any of the appellants, upon paying the amount due the appellees, might sue their co-subscribers for contribution. The majority of the court is of opinion that this feature of the decree is correct. The constitution which makes the stock subscriber, whose subscription is unpaid, liable for the debts of an insolvent corporation does not fix this liability at such a proportion of the corporation’s indebtedness as his unpaid stock subscription bears to all the unpaid stock subscriptions, but in express terms declares that each original subscriber for stock shall be individually liable to the extent of his unpaid stock subscription. As between the stock subscribers and the creditors of the corporation each stock subscriber is liable to the extent of his unpaid stock subscription. As between themselves each stock subscriber is liable for his share of the corporate debts. But this is an individual, not a joint, liability. (Cook, Stock & Stockholders [2d ed.] sec. 211, and cases there cited; Umsted v. Buskirk, 17 O. St. 113; Harpold v. Stobart, 21 N. E. Rep. [O.] 637.)
7. So far as the record before us discloses, no question was made in the court below, nor is any made here, of the
The constitution of the state of Oregon (sec. 3, art. 11) provides: “The stockholders of all corporations and joint stock companies shall be liable for the indebtedness of said corporation to the amount of their stock subscribed and unpaid and no more.” . The supreme court of that state, in construing this section of the constitution, held that one creditor of a corporation organized under the laws of that state could not maintain an action in his own name and for his own benefit against the debtor stock subscribers, of-the corporation; that his action must be one in equity to which all the creditors of the corporation were parties. (See Ladd v. Cartwright, 7 Ore. 329.) This case was followed and approved by the supreme court of the United States in Patterson v. Lynde, 106 U. S. 519. The principles upon which the
The decree appealed from is reversed and the cause remanded, not for retrial, but with instructions to the district court to set aside its decree and enter a new one against each of the appellants within its jurisdiction for the amount of such appellant’s unpaid stock subscription, the decree to be framed in other respects and carried into execution in accordance with this opinion.
Judgment accordingly.