Gambar halaman
PDF
ePub

4. We think the third plea was also properly stricken by the court, inasmuch as we think that whatever fraud may have been committed by the corporation would not operate to defeat an action by the creditors of the corporation, however it might be as between the corporation and a corporator. Persons who gave credit to this corporation would not be bound by any fraud between the corporation and the corporators. As between the corporation and a corporator, such defense may or may not have been good; but as between a trustee appointed by a court to bring suit and collect the unpaid subscriptions of a corporator, no such defense could be made.

5. We think the fourth plea was properly stricken on demurrer, in this, that while it alleged the decree of the court in this case in Virginia, to the effect that if the stockholders should pay a certain per cent upon their subscriptions within a certain time, this would be sufficient to pay off the indebtedness of the company, the plea did not allege that there was any tender or offer on the part of defendant to pay under that decree, within the time therein prescribed, the amount prescribed to be paid. To avail himself of that decree, the defendant should have paid, or have offered to pay, the amounts specified in the decree. No such allegation appears in this plea, and therefore it was properly stricken.

6. It is complained that the court erred in striking the fifth plea, or so much thereof as alleged that the subscription was induced by fraud, and is void for false and fraudulent representations made, and for the fraudulent suppression of material facts concerning said company; the court allowing the words to stand in said plea, that defendant at no time became a subscriber to the National Express and Transportation Company; that he did sign a paper subscribing to the National Express Company for fifteen shares of the capital stock. Whether Howard became a stockholder in this company by subscription which was induced by fraud practiced upon him or not, if he did become a stockholder in said company, he is liable to the creditors of the company for so much of his unpaid stock as might be necessary to pay the company's debts, taken in connection with the other corporators of the company. And whether fraud was practiced upon him or not would make no difference as to the creditors; it would be a question between him and the corporation, with which the creditors had nothing to do. So we think the court

committed no error in striking that portion of the fifth plea complained of. We think the sixth plea was properly stricken, for the reasons stated in justification of the court in striking a portion of the fifth plea.

7. In the seventh plea, which was also stricken by the court, it is alleged that the plaintiff had settled with and released from liability several stockholders under said decree, and defendant contends that this is equivalent to a release of himself. We think the court properly struck this plea. The defendant is bound to the creditors upon his subscription to the capital stock of this company, and whether other stockholders were released or not is a matter with which he has no concern, unless this action on the part of the creditors or their agent increased his liability.

8. For the same reason we think the court was right in striking the eighth plea which is complained of, and also the ninth plea. When the plaintiff below showed that he had been duly appointed a trustee, by a court having competent jurisdiction, to recover of the stockholders of this company their unpaid subscriptions, for the purpose of paying off the creditors of the corporation, and when the plaintiff showed that defendant was a stockholder, and had subscribed so many shares to the capital stock of this company, and that the court had made an assessment upon the stockholders for a certain per cent upon the stock subscribed, and authorized him to sue and collect the same, we think he made out a case which entitled him to recover, notwithstanding any fraud which might have been practiced upon the stockholder to procure his subscription to the capital stock of this company by the corporation or its agents. Fraud thus practiced upon the subscriber was a matter which did not affect the creditors of the corporation.

The great question in this case is, whether the defendant, Howard, who is now the plaintiff in error, was a corporator and a subscriber to the capital stock of this company. He admits by his plea that he did subscribe to fifteen shares of the capital stock of the National Express Company; and it was shown by the evidence introduced by the plaintiff in the court below, that the National Express Company and the National Express and Transportation Company were one and the same. A mere change in the name of a corporation we do not think makes any material difference; clearly not such a differ

ence as would relieve a subscriber from liability to pay for stock subscribed by him.

9. It is insisted that the court erred in allowing the books of the corporation to be put in evidence for the purpose of showing that the defendant did subscribe to fifteen shares of stock, and to show also certain other things therein contained. When it was shown that the defendant was a stockholder in the company, then the books of the company were admissible in evidence against him. But when this fact is not shown, we are of the opinion that the books of the company would not be admissible in evidence against him. In this case, however, it was admitted by the plaintiff in error that he did subscribe to so many shares of stock in the National Express Company; so when it was proved that the National Express Company and the National Express and Transportation Company were one and the same corporation, we think the books were admissible in evidence, not only to show that Howard was a stockholder, the number of shares, and the value thereof he subscribed for, but to show any other transaction that had taken place between him and this company. We are aware that it has been held that the books of a corporation are admissible to show prima facie that the defendant was a subscriber to the stock of the company, and was a stockholder therein; but while we do not think this ruling is correct upon any reason or principle known to us, yet under the facts of this case, we think the books were properly admitted in evidence. We know of no decision, however, which shows, upon principle, that such books are admissible without some special circumstance. We do not think that the case of Turnbull v. Payson, 95 U. S. 418, a decision by Judge Clifford, to the effect that the books of a corporation are admissible in evidence to show that a person is a stockholder, is correct. No reason is assigned in that decision, and none has been assigned in any decision which we have been able to find in either North Car olina or Alabama. But we think, under the facts of this case, where the defendant admitted that he was a subscriber to the stock of the National Express Company, and where it was shown that the National Express Company and the National Express and Transportation Company were one and the same thing, that the books were properly admitted. We think, furthermore, that when the subscription list was tendered, and admitted in evidence by the court below, the plaintiff in error had a right to show that he did not subscribe to this list; and

AM. ST. REP., VOL. XXI.-11

therefore think the court committed error in refusing to allow him to make such proof. Yet we do not think this is reversible error, inasmuch as it appears from the record, without more, that the plaintiff had a right to recover in this case. So, upon considering this case, we are of the opinion that there was no material error committed by the court below, and that the finding of the jury was right, under the facts in proof.

10. It is contended by the plaintiff in error that the admission in the fifth plea, to the effect that he had never subscribed to the National Express and Transportation Company, but that he did subscribe fifteen shares to the National Express Company, could not be used as an admission against him upon the trial of any other plea than that; and the case of Glenn v. Sumner, 132 U. S. 156, is cited as authority to sustain this position. In the present case the main issue was, whether the plaintiff in error was a subscriber to the stock of the National Express and Transportation Company. It was affirmatively alleged in the declaration that he was; and if he was such subscriber, his liability, under the facts of the case, was clear and unmistakable. We think this allegation in the plaintiff's declaration, that he was such subscriber, called forth from him a clear and explicit denial of the same by a plea of non est factum, as was strongly hinted at by the supreme court of this state in the case of Thornton v. Lane, 11 Ga. 489. This was the main issue in the case, and without a determination of the same against the plaintiff, the plaintiff was entitled to judgment. So we think that a plea which denies that the defendant was a subscriber to this company, but which at the same time admits that he was a subscriber to another company (which two companies were one and the same), was evidence against the defendant (now plaintiff in error), and might be so used as an admission. While we admit that under the laws of this state a defendant may file as many contradictory pleas as he thinks proper, yet if one of those pleas bears on the main issue in the case, and there be an admission in the same by the defendant which is calculated to damage his cause, that admission may be used in evidence against him. In fact, the only issue to be determined by the jury in this case was, whether Howard became a subscriber and stockholder in this company, and any plea which bore upon that issue, and which contained admissions by the defendant, could be used against him. So we think

that in the case of Glenn v. Sumner, 132 U. S. 156, what was said by the judge in delivering the opinion therein, to the effect that statements made for the purpose of presenting the issue to which they relate are not evidence upon any other issue in the same record, does not apply to this case. Judgment affirmed.

CORPORATIONS. For a thorough and complete discussion of the liability of stockholders to the creditors of a corporation for the corporate debts, wherein is considered the question of unpaid subscriptions, see extended note to Thompson v. Reno Sav. Bank, 3 Am. St. Rep. 806–873.

TIMOTHY V. CHAMBERS.

[85 GEORGIA, 267.]

HOMESTEAD SOLD WITHOUT LEAVE MAY BE RECOVERED THOUGH PROCEEDS ENJOYED-MESNE PROFITS SET OFF. Where husband and wife sold and conveyed homestead land secured under the constitution of 1868, with no leave so to do, that the beneficiaries of the homestead used and enjoyed the proceeds of the sale will not bar a recovery of the land, but money thus used and enjoyed may be set off against mesne profits for which the purchaser is liable.

--

HOMESTEAD SOLD WITHOUT LEAVE MAY BE RECOVERED · WIFE'S WARBANTY DEED NOT ESTOPPEL. The wife's deed, with or without warranty, if it has no effect as a conveyance of title, will not estop her as to her interest in the homestead premises in an action to recover the land on the homestead right. Though she may be bound to respond to her warranty, her own property, not the homestead itself, must be looked to for satisfaction.

HOMESTEAD, PRESUMPTION IN FAVOR OF REGULARITY OF PROCEEDINGS TO OBTAIN. — Liberal presumptions are indulged in favor of the regularity of homestead proceedings. A proper order to the surveyor will be presumed, where the ordinary has approved the plat returned to him; and approval of the "homestead" means, substantially, approval of the plat and the schedule conformably to section 2009 of the Georgia code. HOMESTEAD, SUFFICIENCY OF SURVEYOR'S AFFIDAVIT OF PLAT OF. — The surveyor's affidavit that the plat "is a correct plat" means, in substance, that the land is correctly platted and laid off, and is a sufficient affidavit under section 2008 of the Georgia code. HOMESTEAD, REGISTRATION OF PLAT OF. - The law does not require the plat to be recorded in the county in which the land lies, but only in the county in which the jurisdiction to secure the homestead is exercised: Georgia code, section 2009.

SUIT by R. G. Chambers and wife, Eliza, for the use of the wife and minor children, against A. R. Elliott and others, for a tract of land in Madison County claimed as a homestead, and for rents to January 1, 1885. Defendants pleaded the general issue, and also that in 1884 said land was conveyed by Cham

« SebelumnyaLanjutkan »