Bearse v. Mabie
| Decision Date | 19 May 1908 |
| Citation | 84 N.E. 1015,198 Mass. 451 |
| Parties | BEARSE v. MABIE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Clifton L. Bremer and Lincoln Bryant, for plaintiff.
W. C Cogswell and J. H. Appleton, for defendant.
1. We assume that there was an appeal from the order overruling the demurrer. It is so stated in the bill of exceptions. What raises a doubt upon the matter is the fact that there is no docket entry to that effect.
The appeal comes before us properly with the bill of exceptions since by reason of the exceptions no judgment could be entered.
The declaration sets forth the statute of South Dakota under which the Newton Moulding & Lumber Company was incorporated and alleges that the defendant was a stockholder and 'that nothing has been paid' on his shares. That is sufficient, at any rate, on general demurrer, and it was not necessary to state in terms that the liability under the statute set forth was a contractual one, that the defendant was a subscriber to stock as well as a holder of stock, that the courts of South Dakota had construed the liability created by the act in question to be a contractual one, or to negative by allegations in the declarations injustice to others by enforcing the liability against this defendant whatever that may mean. We are of opinion therefore that the order overruling the demurrer must be affirmed.
2. We are of opinion that the South Dakota statute now in question is the same kind of statute as that before this court in Hancock Bank v. Ellis, 172 Mass. 39, 51 N.E. 207, 42 L. R. A. 396, 70 Am. St. Rep. 232, and consequently that the first, second, fifth, sixth and seventh rulings asked for by the defendant were properly refused.
3. We are of opinion that the evidence warranted a finding that the defendant was a stockholder, and that the third, eighth and thirteenth rulings asked for were properly denied.
It is stated on the stub of the stock certificate book that certificate No. 1 for 10 shares was 'issued to' the defendant. The testimony of Bassett in connection with this entry made by him warranted a finding that the shares were issued to the defendant. In addition the defendant signed on the back of the certificate in question a blank transfer of the ten shares, dated two and a half months after the stock was issued to him; and finally, there was no evidence that that transfer had been accepted by the corporation or anybody else. This evidence warranted the finding made by the judge below that the...
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