52 N.J. Eq. 400 | New York Court of Chancery | 1894
The Star Rubber Company, one of the defendants in this suit, became insolvent and a receiver was appointed to wind up its affairs. Subsequently, Jonathan Steward, who was one of the directors of the Star Rubber Company, made an assignment for the benefit of his creditors. Mr. Steward, at the time of making his assignment, held large claims against the Star Rubber Company, and in order to ascertain their character and value, his assignee filed a bill against the receiver of the Star Rubber .Com-
The receiver of the Star Rubber Company filed an answer and an answer by way of cross-bill against the claim of the assignee of Mr. Steward as one of the directors of the Star Rubber Company, as well as against the other directors of said company, alleging that Mr. Steward and the other directors were personally liable, under the seventh section of the act respecting corporations, for the declaring and payment of dividends contrary to the provisions of the seventh section of said act. This section provides that—
“It shall not be lawful for the directors of such corporation to make dividends except from the surplus of net profits arising from the business of the corporation, nor to divide, withdraw or in any way pay to the stockholders, or any of them, any part of the capital stock of the said corporation, or to reduce the said capital stock, except according to this act, without the consent of the legislature, and in case of any violation of the provisions of this section, the directors under whose administration the same may happen, shall, in their individual and private capacities, jointly and severally be liable at any time within the period of six years after paying any such dividend to the said corporation- and to the directors thereof, in the event of its dissolution or insolvency, to the full amount of the dividend made or capital stock so divided.”
Semi-annual dividends were declared during the years 1887, 1888 and 1889, and one in 1890, amounting in all to over $68,000. The allegation.is, that all of these were in violation of the statute referred to.
It is perhaps just to remark that there are many circumstances connected with this transaction which necessarily arouse very grave suspicion, and perhaps made it incumbent upon the receiver to make a most diligent investigation. For example: It appears that in the year 1881 the real estate and machinery, according to the books of the company, were valued at $62,000 and $67,000 respectively. At the close of the year 1886 they had been increased, according to the books, to $101,000 and $110,000 respectively, making, it will be seen, over $211,000.
After what appears to me to be a very careful and elaborate inventory, made by the receiver, with the aid of a very intelligent, cautious and experienced expert, these two items are placed at $169,783.34, making a difference between the book value, as given, and the two items of real estate and machinery of over $116,000.
Besides these observations, which it is but fair to say must necessarily have' attracted the attention of the receiver and all creditors of the Star Rubber Company j it is due to all concerned to add that when the real estate and machinery were sold, and Fsold as a plant, the highest bid which the receiver could get for LJFern was $65,000, and this, too, after unusual efforts made and very extraordinary opportunities given to all persons in anywise interested to increase that bid, or to show cause why it should not be accepted and the sale for that consideration confirmed by the court. These observations make it quite apparent that the receiver had strong reasons for diligent inquiry as to the real basis upon which the directors made their dividends, while the market value of the plant during that period should depreciate so enormously in value.
It is alleged that Mr. Steward and seven others, directors of the said corporation, just upon the eve of dissolution of the Star Rubber Company, and with the view of ail application to the court to have a receiver appointed, procured to be made to themselves mortgages upon the assets of said corporation to a very large amount, contrary to law and consequently injurious to other creditors, and fraudulent.
It is further alleged that if the execution of these mortgages was not in violation of well-settled rules of law, under the circumstances in which they were executed and delivered, yet they
I shall first consider whether or not the dividends so declared and paid were paid out of the surplus or net earnings of the-company.
l/ This proposition is to be determined by ascertaining the actual value of all the live assets of the company at the termination of six months, during which the supposed surplus or net earnings-are said to have accrued. / This can only truly be done by taking into the account the cost of repairs and also a reasonable allowance for depreciation for wear and tear or constant use, giving-credit for all actual permanent improvements.^ The statute not. only warrants but compels this course. The capital invested by corporations is all that creditors have for their protection. The-legislature, which creates them and gives them favors which individuals do not have, imposes upon them the necessity of maintaining their capital to its maximum value before they can reap-any benefit from the venture. In view of these statements, but against the protest of counsel for the assignee of Mr. Steward,, testimony was admitted showing that, as above stated, in 1881 and 1882 the real estate and machinery accounts were valued at $62,000 and $67,000 respectively, and that at the end of the period of six months, during which the first dividend of $6,000 was declared, the real estate and machinery accounts had been advanced to $101,000 and $110,000 respectively. From this large increase' in value, according to the books qf the company,, it was urged that a fraud had been perpetrated upon the creditors. It Avas thought at the time that such testimony was rele- ^ vant; however, as avíII be seen, by no means controlling. I still think it was properly received, and in the view I find myself compelled to take of the case, of the highest importance.
I shall therefore determine the validity of the dividends by the testimony of the experts rather than by the books.
Again, it must be remembered that the present object is to ascertain the value of the machinery on the 31st day of December, 1886, but Mr. Ridgway, in his estimate, values all of the machinery that was in the plant at- the period of the appointment of the receiver, being an increase, according to the books, of over $19,000. Therefore, to ascertain the fair value on the 31st day of December, 1886, when the -first dividend Avas declared, all that was added after that date must be deducted from the total value as given by the experts.
Hence, what is to be understood by the statement of Mr. RidgAvay when he says the value of that machinery so located for use was very nearly $100,000? I am obliged to deal with that statement. In doing so I must have regard for the rights of creditors as well as of the directors. I can find nothing in the case to justify me in placing the valuation of all the machinery beyond $90,000. This is a liberal view,'taking both the books and the testimony of Mr. Ridgway as a guide, deducting from the book value the Amine of the machinery which Mr. Ridgway says was cast aside at the period of the reconstruction»
Placing .the whole value, therefore, at $90,000, there must be deducted therefrom the value of the foundations, $15,000, and the value of the machinery purchased after the 31st day of December, 1886, which was over $19,000, according to the books. These items aggregate $34,000; deducting them from the $90,000 and we have $56,000 as the value of the machinery at the time when the first dividend complained of was declared.
But the book value of the machinery at that time was, as above stated, $110,324.38, being $54,324.38 in excess of the true value, according to the testimony of Mr. Ridgway. This book value was of course carried into the trial Jba].ance and employed in making the surplus or net profits upon which the first dividend of $6,000 was declared. This supposed surplus or net profits appears upon the trial balance to be $33,667. This statement reduces the book assets more than $20,000 beyond the supposed surplus or net profits. So that in pronouncing judgment on this first dividend, I must conclude that it was declared in violation of the provisions of the statute.
Taking all the other items upon the trial balance as correct, except the one concerning machinery, was the value of that item so increased on all of the other balance-sheets, at the time of the declaration of all the other dividends complained of, as to justify such -dividends? A brief statement will show the result.
The second dividend decláred was $10,720, upon a supposed surplus or net profits of $38.099.66. upon a book valuation which had increased to $111,813.38, but upon a real valuation of $5^r48f). which shows that the book valuation was in excess of the true value the sum of $54,324.38, being over $16,200 in excess of the supposed surplus or net profits.
The third dividend declared was $9,530, upon a supposed surplus or net profits of $37.934. upon a book valuation ivhich had increased to $113?717, but upon a real valuation of $5^¿22y* which shows, as before, that the book valuation was in excess of the true value the sum of $54,324.38, being over $16,390 in excess of the supposed surplus or net profits.
The fifth dividend declared was $16,800, upon a supposed surplus of $40,905, upon a book valuation which had increased to $117,144, but upon a real valuation of $62,822, which shows, as before, that the book valuation was in excess of the true value the sum of $54,324.38, being over $13,419.38 in excess of the supposed surplus or net profits.
The sixth dividend declared was $11,424, upon a supposed surplus or net profits of $35,854, upon a book valuation which had increased to $124,096, but upon a real valuation of $69,771, which, as before, shows that the book valuation was in excess of the true value $54,324.38, being over $18,470 in excess of the supposed surplus of net .profits.
The seventh dividend declared was $8,568, upon a supposed surplus or net profits of $29,378, upon a book valuation which had increased to $129,362, but upon a real valuation of $75,037, which shows, as before, that the book valuation was in excess of the true value $54,324.38, being over $24,946 in excess of the supposed surplus or net profits.
It'will be seen that all of the dividends except the last were declared at the expiration of every six months, or semi-annually, and the last at the expiration of a little over a year from the one immediately preceding. This last dividend was not declared until after the real estate had been advanced $50,000 by resolution of the board, as above described.
^ From the foregoing statements it must appear that all of the 1/ dividends declared were in violation of the statute. And since it has been shown that the directors were all present and partieinated in the meetings when such dividends were declared, and no entered protest, they are jointly and severally liable to the / extent of the dividends so declared and paid.
It cannot be successfully contended that all such machinery •is not subject to depreciation from wear and tear or actual use. That all machinery does not suffer alike is equally plain. Those
If I had made the first calculation on the basis of $100,000 valuation instead of $90,000, the result would not have differed very materially from the last calculation.
On this branch of the case it is eminently proper that I should say that the books of account of the company have not been established in the ordinary sense in which books of account are required to be established before they are received as evidence of what they contain. No person acquainted with the books during the period of time which they cover, and who had any general or special knowledge of the entries made in them, has been called to speak concerning their truthfulness. No clerk or secretary or other person authorized to make entries therein, or who actually made entries therein, or from time to time witnessed the making of entries therein, has been produced. Experts in bookkeeping have been called. One of these, with no little reason, insists that in making up the trial-balance which, exhibits the supposed net surplus or earnings, entries have been falsely made; by means of which, such surplus or net profits have been unjustifiably increased. The other states, generally, that the books have been kept upon correct principles in all respects. Neither of these experts knew anything about the correctness of the different items which w7ere entered in these , books.
Under these circumstances, although the receiver represents the corporation whose boobs he brings into court, he is not bound by all the statements therein, because he represents creditors as well as the corporation.
For these reasons I am persuaded that his testimony should be qualified by what seems to me to be the clearer and more-intelligent judgment of Mr. Ridgway.
“ Every such corporation shall have power to hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited by its charter, 'x" * * and to mortgage any real estate, with their franchises.”
The one hundred and fourth section of this act (Rev. p. 196) declares “ that all acts and parts of acts, general or special, inconsistent herewith, be and the same are hereby repealed.” The plain object of the revision was to place all corporations upon the same footing. The first section does not say every corporation organized under this act, but every corporation. And the repealer is as broad as though every act inconsistent therewith had been named. I think a careful study of the decisions giving interpretation to legislative enactments of this general character will show that this is the view taken of them by the courts. Bowyer v. Camden, 21 Vr. 87; Hoetzel v. East Orange, 21
It is insisted upon the part of the receiver of the Star Rubber Company that certain mortgages which were executed by that company to its directors and others are illegal and void as to creditors, because conceived in fraud and for the purpose of cheating, delaying and hindering said creditors. These mortgages were all made and delivered on the 22d of May, 1891, one to each of the seven directors, the total amount secured thereby being $396,400.
One to the Trenton Banking Company............................... §1,975
One to the First National Bank of Trenton........................ 43,500
(And. to secure other advances not exceeding §50,000.)
One to the Bordentown National Banking Company for........ 32,700
§78,175
They were all recorded in the Mercer county clerk’s office on the 25th day of May, at five minutes past twelve o’clock in the morning. It was stipulated in each of said mortgages that they should be concurrent liens. The mortgages to the directors were given to secure promissory notes on which they were either accommodation endorsers or accommodation makers, or for promissory notes held by them for money actually loaned. The amounts so secured to them by the said mortgages were as follows :
Jonathan Steward...................................................... §154,500
Philip Dunn............................................................. 56,000
Thomas A. Bell......................................................... 88,700
William I. Yannest.................................................... 47,200
William Ivins............................................................ 10,000
A. V. Manning..............................<.......................... 10,000
Mahlon Hutchinson.................................................... 30,000
On the 28th day of the same month an application was made to this court by Jonathan Steward for the appointment of a receiver for the Star Rubber Company, and the defendant O. O. Bowman was appointed such receiver.
When all these conditions are taken into the account,' the mind is forced to the conviction that the execution and delivery
The eightieth section of the act respecting corporations provides that in making distribution of the funds of such insolvent corporation the receiver shall pay the
“creditors proportionately to the amount of their respective debts, except mortgage and judgment creditors, when the judgment has been by confession for the purpose of preferring creditors.”
The act of which this is a revision included in the exception mortgagees as well as judgment creditors when a preference was intended. It would not only be inconceivable but marvelou-s why mortgagees should be omitted from the exception, if it were not understood that the omission was an oversight and in no sense intended by the revisors. It seems never to have been discovered until years afterwards. The omission is certainly unfortunate for a business-confiding community. It was doubtless this consideration that induced the counsel for the assignee of Mr. Steward to admit that a very great many authorities in this country denounced every such transaction fraudulent and void as against creditors, tie insisted, however, as he justly might, that the decisions of the court of last resort in this state were to the contrary, and according to their interpretation these mortgages must be sustained. The cases referred to are those of Wilkinson v. Bauerle, 14 Stew. Eq. 635; Bergen v. Porpoise Fishing Co., 15 Stew. Eq. 397. See, also, the case of Boehme v. Rall, 6 Pick. Ch. Rep. 542. These cases sustain the mortgages made by the directors to themselves respectively, even though they absorbed everything and were executed as a preliminary step to a declaration of insolvency. The legislation upon the subject
The claim that two of the members of the board of directors were not notified of the special meeting which authorized the •execution of these mortgages, and were not present at such meeting, has not been sustained. The persons alluded to were not directors of the company; although formally elected they did not accept the office in any manner, nor did either of them ever pretend to act in any capacity. Until there is satisfactory evidence of such acceptance in a formal manner, or by conduct iu harmony therewith, no responsibility can be attached and no rights can be claimed by or through them.
Another disputed point is as to the direction which the court shall give to the moneys secured by these mortgages.
First, the banks are entitled to the amounts which shall appear to be due to each of them upon the claims intended to be secured by the mortgages given to them. What as to the funds covered by the other seven mortgages held by the directors ? I speak of funds, because, by the direction of the court, the receiver sold all the real estate and personal property of the Star' Rubber Company, including that which was embraced in the said mortgages, reserving to the several mortgagees the same rights as against the funds that they were entitled to as against the real or personal property. It is conceded that the receiver must pay to the banks the amounts due upon their several claims so far as the assets secured by their mortgages will extend. But who shall make immediate distribution as between
Now, the receiver of the Star Rubber Company having these funds in hand, and claims having been made by the holders of these obligations, both against the Star Rubber Company and against the estate of Mr. Steward in the hands of his assignee, and such assignee having filed his bill in this court for the administration of these funds, ought the receiver of the Star-Rubber Company be directed to pay the money which he shall be required to pay under the Steward mortgage to the original and real creditor, or to the assignee of Mr. Steward, who was only secondarily liable? The Star Rubber Company was the principal debtor and consequently first liable. Mr. Steward, being secondarily liable, has no rights whatsoever as against the-Star Rubber Company, and could claim nothing until he altered his position by discharging the debt and putting himself in the position of a payee or obligee. Neither Mr. Steward nor hisassignee can take a single step in advance against the Star Rub
. It is plainly the duty of the court to apply these funds directly, in discharge of the obligations of the Star Rubber Company, to the party primarily entitled, rather than to. risk their reaching that same destination in any circuitous manner. The real creditor is entitled to the funds, with as little delay as possible, without any unnecessary diminution thereof by way of fees or .commissions.
I shall therefore advise a decree in accordance with these views. The authorities seem to be fully in harmony with this conclusion. It is quite well settled that every creditor may file his claim against as many different persons as are liable thereon, or in case of their death or insolvency, against their representatives, as he may desire, and press his claim until the whole amount is paid. Byles Bills (6th Am. ed.) 439, 447; Chitiy Bills (11th Am. ed.) 536, 722, 724; 34 Eden Bank. L. 155; Ex parte Wildman, 2 Ves. Sr. 113.
The undoubted- general rule is, that the holder of negotiable paper may pursue his remedies against all the parties liable thereon at the same time. 2 Pars. Bills & N. 457. It would be absurd to say that his rights in this respect would be diminished by the insolvency of one or all of the parties so liable.
Still another question is presented. Mr. Steward made assignment of certain securities which he held to different creditors as collateral security for their claims. What are their rights as against the general creditors of Mr. Steward? It is my judgment that they may file their claims with the assignee for the whole amount due them, without being compelled, in the first instance, to release their collaterals; but they are only entitled, as against general creditors, to a dividend out of the assets in the hands of the assignee, upon the balance of their claim after having received the value of such collaterals. Stew. Dig. p. 388 ¶ 275 and cases cited; Vandervere v. Conover, 1 Harr. 491; Moses v. Thomas, 2 Dutch. 128; Bell v. Fleming’s Exrs., 1 Beas. 30; S. C., 1 Beas. 495.
What is said by the court in the case of Wilson v. Staats, 6 Stew. Eq. 531, recognizes this principle. Story Eq. Jur. § 564 b.
These cases proceed upon the old and long-established principle that where one creditor has two securities and others only one, the former must exhaust his claim to that which is entirely his own before he can resort to that which they hold in common. Hudkins v. Ward, 30 W. Va. 204; Ellis v. Temple, 4 Coldw. 315; General Ins. Co. v. United States Ins. Co., 10 Md. 517; Woollen’s Exrs. v. Hillon’s Exr., 9 Gill 185; Jones v. Zollieoffer, 2 Hawks 623; Ramsey’s Appeal, 2 Watts 228; Bank of Muskingum v. Carpenter, 7 Ohio 253; Terry v. Woods, 6 Sm. & M. 139.
The cause will be referred to a special master to take and state the accounts of the different assignees and receivers according to the practice of the court, ándito report thereon.