Bole v. Belden Automobile Transmission Co.

Decision Date06 January 1913
Docket Number233
Citation239 Pa. 1,86 A. 640
PartiesBole v. Belden Automobile Transmission Co
CourtPennsylvania Supreme Court

Argued November 1, 1912

Appeal, No. 233, Oct. T., 1912, by W. M. Murray, defendant from decree of C.P. No. 2, Allegheny Co., April T., 1908, No 1068, dismissing petition to intervene in suit of George M. Bole, Receiver of Bair & Gazzam, et al., v. The Belden Automobile Transmission Company, et al., W. N. Murray. Affirmed.

Petition to intervene as a plaintiff.

The facts are stated in the opinion of the Supreme Court and in Bole v. Murray, 233 Pa. 589.

Error assigned was decree dismissing petition to intervene.

Appeal dismissed at appellant's costs.

Harvey A. Miller, with him U. G. Vogan, for appellant. -- The petitioner had a right to intervene: Rankine v. Elliott, 16 N.Y. 377; Bickley v. Schlag, 46 N.J. Eq. 533 (20 A. Repr. 250).

The court clearly has the right to amend or modify its own decree, changing the decree in favor of the receiver for the benefit of all creditors of the Belden Automobile Transmission Company: Beek's App., 15 Pa. 406; Weller's App., 103 Pa. 594.

Charles F. Patterson, for appellees.

Before FELL, C.J., BROWN, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE BROWN:

The bill in this case was filed by creditors of The Belden Automobile Transmission Company, an insolvent corporation, to compel subscribers to its capital stock to pay their subscriptions. Among these subscribers was W. N. Murray, the appellant, who had subscribed for seventy-five shares of the stock. His defense was that he had turned over to the corporation an automobile for which he had paid $2,800.00 and on which, for the purpose of demonstrating the usefulness and adaptability of certain appliances in connection with motor cars to be manufactured by the corporation, he had expended sums of money amounting, when added to the original cost of the automobile, to a sum equal to his subscription for the stock. This defense was held to be unavailing by the court below, and in sustaining the decree ordering the defendant to pay so much of the amount due on his subscription as was necessary to pay the indebtedness of the corporation to the complaining creditors, we said, through Mr. Justice STEWART: "We have definite and distinct findings that the issuing of the certificate for the seventy-five shares in defendant's name was not pursuant to any corporate action; that there was no evidence that the directors of the corporation ever passed judgment on the value of the property defendant claims to have turned over in payment, or what the actual value of the property was. There is the further finding that the property was of little utility. Since the case rests on the findings of the court what of itself is sufficient to defeat the defendant's attempt to escape liability on the ground set up, without going further, is the fact that there is no finding that the payment for the stock in property was ever the subject of contract or agreement between the defendant and the corporation. Except as there was such contract defendant stands with respect to the property he turned over in the same situation as any other creditor of the concern. The fact that there is no finding of a contract is an equivalent in this proceeding of a finding that there was no contract. In all such cases where an original subscriber to stock claims to have paid a subscription in something else than money, the burden is on him to show a contract with the corporation permitting it, and the further burden is on him of showing that the transaction was fair and that the property turned over in payment had been valued by those representing the corporation in good faith. None of these things here appear, and it follows that defendant's liability for his subscription to seventy-five shares remains, and that he was properly charged therewith": Bole v. Murray, 233 Pa. 589. This opinion was filed January 2d, 1912, and, on ...

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