58 So. 145 | La. | 1912
The point of law to be decided is thus stated in the brief of counsel for the plaintiff and appellant, to wit:
“The receiver of a corporation, standing as the representative of all creditors, sues a subscriber to stock in the insolvent corporation, alleging nonpayment thereof. The subscriber admits the subscription, but avers payment in property, and proves payment in property. The receiver desires to prove that the value of the property given, and received in payment, was not equal to the par value of the stock. The court holds that the receiver cannot prove this fact. There is but one question at issue: Where, under the above circumstances, payment is pleaded, and the payment is shown to have been made in property, can the plaintiff establish the value of the property so given and received in payment?”
Plaintiff alleged that defendant subscribed to 25 shares of the capital stock of the corporation, and has paid nothing on said subscription.
Defendant, for answer, admitted the contract of subscription, but denied that he owed anything by reason thereof, because the company was formed for the purpose of acquiring the business and property of two other corporations, B. and C., and did acquire same and assume the liabilities thereof, because defendant owned 16 shares of stock of B. and 5 shares of 0., of the total par value of $2,100, and that the new corporation took said stock at $112.50 per share, making a total of $2,3(5(2.50, and defendant paid the balance of $137.50 in cash, thereby discharging his obligation as subscriber.
The evidence so offered by the plaintiff was ruled out, on the ground that the petition did not allege fraud, or charge specifically that the shares of stock received in payment were at the time without any money value; and therefore the defendant was not placed on his guard.
Plaintiff charged that the defendant had subscribed to 25 shares of stock of the par value of $100 per share, and had not paid for the same. Defendant well knew that he was called upon to disclose what consideration, if any, he had paid for said shares of stock, and answered that he had paid $137.-50 in cash, and the balance of $2,362.50 in shares of stock of other corporations, which were taken at $112.50 per share. Defendant was bound to know that the receiver repre
It is therefore ordered that the judgment below be reversed; and it is now ordered that this cause be remanded to the court below for further proceedings according to law and the views expressed in the foregoing opinion, and that defendant pay the costs of appeal.