52 Neb. 833 | Neb. | 1897
This was an action brought in the district court of Douglas county by Albert U. Wyman, as receiver of the Nebraska Fire Insurance Company, an insolvent corporation, for the collection from several of its individual stockholders of an amount equal to the unpaid subscription of each stockholder named as a defendant. The final decree, in so far as it establishes the liability of the appellants, was in this language: “And it is further con- _ sidered, adjudged, and decreed that the plaintiff, as receiver of the said Nebraska Fire Insurance Company, have and recover of and from the said defendant Lorenzo B. Williams the sum of $6,243.75, with interest from the 13th day of April, A. D. 1891; and of and from the defendant George F. Wright the sum of $7,617.37, wi+h interest from the 13th day of April, A. D. 1891; and of and from the defendant Samuel R. Johnson the sum of $10,156.50, with interest thereon from the 13th day of April, A. D. 1891; and of and from the defendant Henry W. Yates the sum of $208.13, with interest thereon from the 13th day of April, A. D. 1891; * * * and that the plaintiff recover of and from the said defendants his costs of this action, taxed at $-etc. From this judgment Williams, Wright, Johnson, and Yates have appealed. A motion wag submitted to affirm the judgment against Williams because of his failure to file a brief as required by the rules of this court. This motion must be sustained, and accordingly the judgment against Williams is affirmed.
It is not necessary to describe at length the various pleadings by which the issues were presented in the district court. For every practical purpose, it is sufficient to say that all the questions urged by the appellants on this appeal were distinctly presented to, and passed upon, by the trial court. These questions summarized, are as follows: (1.) With reference to the right of the receiver to maintain this action two objections were
Albert U. Wyman was appointed receiver in an action originally instituted by one of the stockholders against the Nebraska Insurance Company for the purpose, among others, of procuring the appointment of a receiver to wind up the affairs of said corporation, which, as said stockholder alleged, was insolvent. The petition of this stockholder was filed in the district court of Douglas county on May 14, 1891. Nine days afterwards the auditor of public accounts of the state of Nebraska filed his petition of intervention, in which he asked the appointment of a receiver to be clothed with extensive powers such as would enable him to fully wind up the affairs of the said Nebraska Insurance Company. On May 26, 1891, another petition of intervention was filed, this time by the state of Nebraska on the relation of its attorney general. In this petition of intervention there was a prayer, for the dissolution of the Nebraska Insurance Company. On April 11, 1892,. the final order under and by virtue of which Albert U. Wyman assumes to possess the authority to maintain this suit was made and thereby his powers were defined as follows: “The said receiver shall have power, and it shall be his duty, to commence, institute, and carry on in his own name as such receiver, in this state or elsewhere, all such
To an intelligent consideration of the three remaining objections urged by appellants it is necessary to refer to the proceedings of the board of directors of the Nebraska Insurance Company of date April 13,1891, which, in the decree, was fixed as the initial date for reckoning interest. There were six directors on April 13, 1891, of whom four were Samuel R. Johnson, George F. Wright, Lorenzo B. Williams, and M. J. Burns. Of the other two, one was a son of Samuel R. Johnson, and the other was a son of George F. Wright. Each of these, two directors had one share of stock and, very soon after April 13, 1891, both ceased to be stockholders and directors. The evidence indicates quite clearly that while but one of these young men was present at the first meeting, on the day indicated, both were present at the subsequent meetings of the board hereinafter referred to. At the first meeting, as shown by the record signed by the president and secretary of the company, its manager, Mr. Burns, reported that the sum of $15,552.65, which had been borrowed by him to pay losses, had become due and that the creditors were demanding immediate payment of the sum, and unless the same was paid at once suit would be brought against the company, to the great injury of its credit. It was thereupon resolved by the board of directors that the sum above named should be borrowed, and accordingly the president and secretary of the company were authorized to execute the company’s notes, bearing ten per cent interest, to such parties as would loan the required amount, or any part thereof. The directors then severally offered to loan the following amounts, respectively: Williams, $3,823.80; S. R. Johnson, $6,222.93; George F. Wright, $4,686.40, and Burns, $819.52. Notes were executed for said sums as above indicated should be done, After
“March 13,1891.
“To the Board of Directors of the Nebraska Fire Insurance Company — Gentlemen: You and the Nebraska Fire Insurance Company are hereby notified that, and we do hereby demand, immediate payment of the moneys loaned by us to the company, as evidenced by its promissory notes we now hold against the same.
“Samuel R. Johnson.
“L. B. Williams.
“George F. Wright.
“M. J. Burns.”
While this communication was under consideration, Director Wright offered the following resolution, which was unanimously adopted: “Resolved, that the report of Secretary and Manager Burns, showing the present indebtedness of the Nebraska Fire Insurance Company for moneys borrowed from time to time to pay adjusted losses by fire and the proper expenses of said company
“9. That the said resolution and all the said proceedings purporting to permit or authorize the application of the said assessment upon or towards the said indebtedness of the company to the said defendants respectively were unauthorized, fraudulent, and void, as to*841 the creditors and stockholders of the said corporation and did not in anywise release the said defendants from or impair their liability or obligation to pay the said assessments respectively, and the same remain valid as to snch creditors and stockholders and in full force against the said defendants respectively.”
As these directors in due form authoritatively as a board had ascertained and declared the existence of an indebtedness and of an exigency demanding an assessment on the unpaid stock held by themselves, these assessments became, at least as against these directors, an indebtedness duly ascertained which, therefore, was collectible in this action without further preliminaries.
The appeal of Henry W. Yates may be disposed of on principles resembling those above applied. For the fifty per cent of his unpaid subscription of stock the company held his promissory note. His testimony shows that he came into possession of this note by virtue of some arrangement with Mr. Hart, the purchaser of his stock, whereby it was claimed such purchaser’s liability was substituted for that of Yates. The district court found adversely to the contention of Mr. Yates and we cannot assume that this finding was unsupported by the evidence, for we have not been able to find in the bill of exceptions the written instrument upon which, apparently, was founded the claim that Hart had been substituted for Yates and the liability of the latter discharged. This contract was identified and offered as Exhibit 134. There was also offered in evidence a note in no way described, except that it was designated as Exhibit 133. There was, moreover, the following offer in connection with the testimony of Mr. Yates: “I will offer in evidence * * * page 6 and page 31 of one of the ledgers of the Nebraska Insurance Company, which has been identified as Exhibit 30, the said pages being marked by the reporter as Exhibits 135 and 136.” In that portion of the bill of exceptions which contains the exhibits we find the following memorandum: “Ex-
Affirmed.