Cable v. McCune

• Citation: 26 Mo. 371
• Parties: CABLE et al., Plaintiffs in Error, v. MCCUNE et al., Defendants in Error.
• Decision Date: 31 March 1858
• Court: United States State Supreme Court of Missouri

26 Mo. 371

CABLE et al., Plaintiffs in Error,

v.MCCUNE et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1858.

1. A demand against a corporation for damages for the loss of a steamboat through the negligence of its agents is not a debt of the corporation within section 18 of the first article of the act concerning corporations, (R. C. 1845, p. 234,) which makes the stockholders jointly and severally liable if the corporation fail to give notice annually of all the “existing debts” of the corporation.

Error to St. Louis Court of Common Pleas.

The object of this action, which was commenced August 21, 1854, is to subject the defendants to personal liability as stockholders of a corporation called “The St. Louis Marine Railway and Dock Company, established and organized under an act of the general assembly, approved January 18, 1849.” (See Sess. Acts, 1849, p. 144.) The petition sets forth substantially that in and prior to August, 1851, the defendants were, and thenceforward continued to be, stockholders in The St. Louis Marine Railway & Dock Company, a corporation created by an act of the general assembly, approved January 18, 1849; that at the same time plaintiffs were the owners of a certain steamboat called the James Hewett; that the said corporation was the proprietor of a certain marine railway, dock, &c., and then held itself forth as ready, prepared and furnished with good and sufficient agents, dock, machinery, works and means for raising and repairing steamboats, and especially said steamboat James Hewett; that in consideration of a certain sum said corporation agreed to raise said steamboat free from the water, in the dock of said corporation, in a condition to permit the repairs, and thereafter to deliver said steamboat to the owners thereof again in good and sound condition as received and repaired, and to do the same in a good, safe and workmanlike manner; that said corporation did not perform its undertaking; that the steamboat was delivered to the corporation for the purposes aforesaid August 17, 1851; that by reason of the insufficiency of the docks, machinery, &c., and by reason of the want of skill, care and due diligence on the part of said corporation, its agents and servants, the said boat was stove in and broken, and before she was raised out of the water and in a condition to be repaired was precipitated over the side of said dock into the Mississippi river and sunk in deep water, and rendered utterly worthless and totally lost; that on the 25th day of October, in the year 1851, the plaintiffs instituted an action against the said corporation for the recovery of the damages sustained by them by reason of the non-performance of the aforesaid contract; that in that action they recovered a judgment against the corporation November 23, 1853, for $18,080, which judgment still remains unsatisfied, an execution issued thereon having been returned “ nulla bona;” that from the time of the establishment of said corporation, up to and long after the making and breach of said contract as above set forth, the corporation did not, nor did any of its officers, agents or servants, give notice, in any newspaper printed in the county of St. Louis, of all the existing debts of said corporation, as required by law; that by reason of the non-performance of the contract aforesaid plaintiffs have sustained damages in the sum of $18,085, for which and interest they ask judgment.

Defendants, in their answer, admit the recovery as alleged of the judgment against The St. Louis Marine Railway & Dock Company in the month of November, 1853; admit that upon the rendition of that judgment the relation of debtor and creditor was established between plaintiffs and the corporation; but deny that prior to the rendition of the judgment any such relation existed. They allege that the action resulting in said judgment was brought for the alleged misfeasance, negligence, unskillfulness and remissness of the agents and servants of the corporation in respect of the steamboat James Hewett, which allegation was denied by said corporation, and upon which allegation and denial the issue was joined which resulted in the verdict on which said judgment was rendered. Defendants deny that the liability of the corporation to the plaintiffs for and on account of the sinking of the James Hewett constituted a ““debt” in any proper sense of the term, either popular or technical; and say that it was impossible for the said corporation, in making publication of existing debts, to mention and enumerate among them a claim for damages the legal validity of which the corporation wholly disputed and repudiated; that it appears from the record of the judgment in the case of Cable et al. v. St. Louis Marine Railway & Dock Company and the pleadings therein, that the said action was not brought upon the contract between the owners of the James Hewett and the said corporation, but proceeded upon the negligence, misfeasance and unskillfulness of the agents of the corporation; that all the debts of the corporation existing prior to January 17, 1852, have been fully paid and satisfied; that upon said last mentioned day, and afterwards in each year during the continuance of the corporation to do business and have an office for the transaction of business, the said corporation did give notice, as required by law, of all existing debts of the corporation; that in 1853 also notice was given as required by law; that in the month of May, 1853, all the property and effects of the corporation, of whatever kind, were sold at public sale to satisfy the debts of said corporation, and all the assets and effects were consumed and exhausted by said sale and in paying said debts; and since the month of May, 1853, the said corporation has had no place of business whatever, nor any property; nor has any board of directors or other officers been since that time chosen to take charge of any of the affairs of said company, nor has said company since that time had any affairs to take care of.

The cause was submitted to the court upon the petition and answer and the following agreement: “In this case all the facts set up in the answer respecting the publication of notice by the directors, and the payment of all previous debts by the company (excepting the claim of the plaintiffs for the loss of the James Hewett steamboat) which accrued prior to the 17th of January, 1852, are admitted. It is also admitted that in May, 1853, all the property and effects of the corporation, of whatever kind, were sold at public auction to satisfy the debts of the corporation owing, and that after said sale the said company had no office or place of business, or any election of officers, and has not since that time (May, 1853) done or attempted to do any business as a corporation. And thereupon the cause is submitted to the court upon the pleadings and this agreement, the record in the case of Cable et al. v. St. Louis Marine Railway & Dock Company being also in evidence.”

The petition in this action (Cable v. St. Louis M. R. & D. Co.) which was commenced at the February term, 1852, of the St. Louis court of common pleas, set forth that plaintiffs were, in August, 1851, the owners of the James Hewett; that the corporation was the owner of a marine railway and machinery, & c., and held itself out to the public as ready and prepared, &c., for doing the work of raising and repairing steamboats, and especially the James Hewett, which, in consideration that plaintiffs would pay a certain sum, defendant undertook to raise from the water, repair and redeliver to plaintiffs again in good and sound condition as received and repaired, and to do the same in a good, safe and workmanlike manner; that defendant did not perform said promise; that the boat was delivered to defendant on the 17th of August, 1851; and that, by reason of the insufficiency of their dock and the want of skill and care on the part of the agents of defendant, the boat was broken, stove, sunk and ruined, to the damage of the plaintiffs, &c. The answer of the corporation set forth that the loss complained of arose from inevitable accident and not from any want of skill or care on the part of the corporation or its agents. On the issue thus formed there was a trial, and a verdict and judgment for plaintiffs, which was affirmed by the supreme court. (See 21 Mo. 133.) The judgment was for $18,080, and was rendered November 23, 1853.

The court held that the plaintiffs could not recover. A motion for a review was made and overruled.

The 18th section of the first article of the act concerning corporations, approved March 19, 1845, (R. C. 1845, p. 234,) is as follows: “Every corporation hereafter created shall give notice, annually, in some newspaper printed in the county where the corporation is established, and in case no paper is printed therein, then in the nearest paper, of the amount of all the existing debts of the corporation; which notice shall be signed by the president and a majority of the directors; and if any of the said corporations shall fail to do so, all the stockholders of the corporation shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such notice shall be given.”

Drake, for plaintiffs in error.

I. The 18th section of article 1 of the act concerning corporations is unquestionably in its nature remedial. The familiar principle that remedial statutes are to be liberally construed, to suppress the mischief and promote the remedy, fully applies. The defendants do not deny that there was a contract between the owners of the boat and the company; but, on the contrary, in stating “that the action (Cable v. St. L. M. R. & D. Co.) was not brought upon the contract between the owners of the James Hewett and the said corporation,” it is admitted that there was a contract. The gist of the action against the company was the contract of the...