Boeppler v. Menown
| Decision Date | 21 April 1885 |
| Parties | J. W. BOEPPLER, Appellant, v. FRANK MENOWN, Respondent. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, LUBKE, J.
Affirmed.
M. KINEALY and J. R. KINEALY, for the appellant.
JOHN D. POPE and EBER PEACOCK, for the respondent.
An insolvent manufacturing corporation made an assignment to the plaintiff, under the statute, for the benefit of its creditors. As such assignee, the plaintiff has brought the present action against the defendant, a stockholder in the corporation, to recover the balance remaining unpaid upon his shares of stock, alleging in general terms “that the whole amount of said unpaid balance on said stock * * * is needed to pay the debts of said corporation.”
The answer is: 1. A general denial. 2. An allegation that no call for the unpaid balance sued for has been made either by the corporation or by any court. 3. “That there were and are many stockholders of said Wardwell Manufacturing Company, owing different sums on account of unpaid stock held by them in said company; that plaintiff has not sued all of said stockholders to recover balances owing by them as aforesaid; and that the amounts, if any, which should be collected from each of said stockholders can only be determined by a suit in equity.” 4. An allegation which need not be considered because no question arises upon it in the present state of the record. To this answer a reply was filed and the cause went to trial on the issues thus made.
At the trial, the plaintiff gave evidence tending to prove the allegations of his petition, but did not prove that the aggregate amount due of unpaid stock was necessary for the payment of the debts of the corporation. In lieu of this he offered to prove that the aggregate amount due from such of the stockholders as were solvent, was necessary for the payment of such debts; and, for this purpose, he offered evidence tending to prove that certain of the share-holders were insolvent, which evidence was excluded by the court.
At the close of the evidence the plaintiff asked the court to give the following instruction, which the court refused to give: “If the court, sitting as a jury, believe from the evidence that plaintiff is the assignee of the Wardwell Manufacturing Company; that said company was, at and prior to its assignment to said Boeppler, the plaintiff, a corporation, and the defendant was a stockholder thereof, and had not fully paid the face amount of his stock; and that the whole amount due on the stock of the solvent stockholders was less than the amount of the debts due by said Wardwell Manufacturing Company when this suit was instituted or now, and is needed to pay said debts, and that the said corporation or plaintiff, as such assignee, has no other assets out of which to pay said debts, or any part of such now remaining due, then the court shall find in favor of plaintiff against defendant for the full amount due by him on his said stock, that is, the whole amount unpaid thereon.” The court thereupon gave judgment for the plaintiff in the sum of $939.25, the same being the amount which it would be necessary for the assignee to collect from the defendant as a shareholder in order to raise a fund sufficient to pay the debts of the corporation, provided all the share-holders were solvent and should pay their respective contributions. From this judgment the defendant prosecutes no appeal, but the plaintiff appeals.
It is perceived that the questions which arise upon this record are, whether in the state of the pleadings, the court erred in excluding evidence of the insolvency of certain of the stockholders, and subsequently, in refusing the declaration of law above quoted. Primarily, the question is whether the court erred in excluding the evidence stated; because, this evidence being out of the case, no basis was afforded for the giving of the declaration of law.
The plaintiff's positions are: 1. That under the rulings of the supreme court and of this court, the unpaid balances due by the stockholders of a corporation in respect of their shares of stock pass by a deed of assignment made by the corporation to an assignee under the statute for the benefit of its creditors. This position is unquestioned.-- Lionberger v. Broadway Savings Bank, 10 Mo. App. 499; Shockley v. Fisher, 75 Mo. 498; Eppright v. Nickerson, 78 Mo. 482. 2. That the assignee may sue at law to collect these unpaid balances without the previous making of an assessment either by the corporation through its directors, or by a court of equity exercising the powers of a corporation in this regard; and that so much of the decision of this court in Lionberger v. Broadway Bank ( supra) as holds or concedes the contrary doctrine, is overruled by the two decisions of the supreme court just cited. How far this position is correct, is the real question in the case.
It must be conceded that the two decisions of the supreme court above cited are confusing upon this point. In Shockley v. Fisher ( supra), the question arose on a demurrer to a petition by an assignee of a corporation which contained the same allegation as the petition before us, namely, that the whole of the unpaid balance due by the stockholder who was sued, was necessary to pay the debts of the corporation. But the demurrer was not rested upon this ground, nor did the opinion of the court in holding the demurrer not well taken, advert to the question whether the assignee could sue without a previous assessment made by the corporation or by a court of equity. In the subsequent case of Eppright v. Nickerson ( supra), the question did not directly arise. But it is well known that a strong effort was made in that case by the learned and lamented lawyer who represented the respondent in the case of Lionberger v. Broadway Savings Bank in this court to induce the supreme court to overrule the decision of this court in that case. This the supreme court refused to do, but laid down the same doctrine which we had laid down in that case, citing our decision with approval.
That doctrine was this: 1. That the unpaid balance due by a stockholder of a corporation in respect of his shares of stock passes under a deed of assignment by the corporation, whereby it conveys all its assets to an assignee for the benefit of its creditors. 2. That in such a case, the aid of a court of equity is necessary to compel the directors of the corporation to make the necessary call upon the stockholders for such balance of their unpaid stock as is required to liquidate the debts of the corporation, or else to make the necessary call itself and authorize suits for the collection of the same from the various stockholders. Indeed the object of the suit in the Broadway Bank case was to compel the directors of the corporation to make the necessary assessment, or else to have the court make it. In the opinion of the supreme court in Eppright v. Nickerson (78 Mo. at page 490), Mr. Justice Henry quotes the following language of Mr. Justice Bradley in the case of Marsh v. Burroughs (Wood 463): “When a debtor has such right [being a corporation, to collect such unpaid subscriptions] and does not choose to exercise it, equity at the instance of creditors will exercise it for him.” At...
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