Clarke v. Cold Spring Opera House Co.
| Decision Date | 22 June 1894 |
| Docket Number | 8891 |
| Citation | 59 N.W. 632,58 Minn. 16 |
| Parties | Nehemiah P. Clarke v. Cold Spring Opera House Co. et al |
| Court | Minnesota Supreme Court |
Argued May 23, 1894
Appeal by plaintiff, Nehemiah P. Clarke, from an order of the District Court of Stearns County, L. L. Baxter, J., made February 24, 1894, denying his motion for a new trial.
On May 13, 1885, the Cold Spring Opera House Company was a corporation created under 1878 G. S. ch. 34, title 2, and having its place of business at Cold Spring. Its capital stock was $ 2,000 divided into eighty shares of $ 25 each. Only thirty-eight of the shares were ever subscribed for or taken, but these were fully paid. Between that date and July 29, 1885, the plaintiff sold and delivered lumber to the corporation to the value of $ 1,231.25. On December 28, 1888 he obtained judgment against it for the amount of his claim and interest and collected by execution $ 848.61 thereof but the writ was returned unsatisfied for the balance. The corporation had become insolvent. Plaintiff commenced this action May 24, 1890, against the corporation and a part of its stockholders and some others, to enforce their constitutional liability to pay the debts of the corporation to an amount equal to the amount of their stock. Const. art 10, § 3. The issues were tried in June, 1892, and findings were filed August 28, 1893. The court found that the defendant Marcus Maurin held and owned six shares, John Roedel and Peter Hoffman each two shares, and that Carl Kropp and eight others of the defendants each held and owned one share, of the capital stock of the corporation; that the remaining defendants held no stock, and that some of the stockholders were not made parties to the action. As conclusion of law the court ordered judgment in favor of plaintiff and against each defendant so found to hold and own stock, for the sum of $ 22.33 upon each share held by him with interest from the date of the commencement of this action. The plaintiff was also awarded costs and disbursements to be divided equally among the twelve defendants. He was required to pay one bill of costs and disbursements to those defendants who were not shown to be stockholders.
The plaintiff moved for a new trial, claiming that on the evidence Marcus Maurin should have been found owner of nine shares instead of six, and Carl Kropp of nine shares instead of one, and that others of the defendants should have been found to own and hold stock of the corporation. He also claimed $ 25 upon each share instead of $ 22.33. The Court denied the motion and plaintiff appeals.
Order affirmed.
G. W Stewart, for appellant.
The evidence shows that thirty-eight shares of stock in defendant company were issued. That the defendant Carl Kropp, was an original subscriber for one share of the capital stock and that he afterwards bought of other subscribers eight more. The defendant Marcus Maurin, was the owner of six shares by original subscription. He also obtained by purchase three more. The corporation had no by-laws or regulations of any kind; no stock transfer book, or any book in which was entered transfers of stock; nothing except articles of incorporation and the stock certificate book. Carl Kropp had destroyed all his certificates and it was impossible for Maurin to find any of his. It was impossible for plaintiff to show in any way other than by parol evidence, that the shares were actually transferred by proper assignment endorsed upon them.
December 2, 1888, there was due upon plaintiff's judgment $ 1,670.61. There has been paid $ 848.61, leaving $ 822 and interest unpaid. The amount yet due exceeds the aggregate amount of thirty-eight shares of stock so that plaintiff is entitled to the entire amount of each share and interest from the time of the commencement of the action to the date of the judgment. The defendants had it in their power and it was their duty, to bring in and have made parties, all the other stockholders, if thereby, their liability could be reduced. Arthur v. Willius, 44 Minn. 409; Erickson v Nesmith, 46 N.H. 371; Brundage v. Monumental Gold &c., Mining Co., 12 Or. 322; Hatch v. Dana, 101 U.S. 205; Handy v. Draper, 89 N.Y. 334; Wheeler v. Millar, 90 N.Y. 353; Burr v. Wilcox, 22 N.Y. 551.
The trial court held that because there was no evidence of the formal transfer of the stock upon the books of the company, as provided by 1878 G. S. ch. 34, §§ 8, 110, the transferees were not liable, and that plaintiff could hold only the original subscribers. This was error. Lund v. Wheaton Roller Mill Co., 50 Minn. 36; Baldwin v. Canfield, 26 Minn. 43; Joslyn v. St. Paul Distilling Co., 44 Minn. 183; McNeil v. Tenth Nat. Bank, 46 N.Y. 325; Grymes v. Hone, 49 N.Y. 17; Johnston v. Laflin, 103 U.S. 800; Isham v. Buckingham, 49 N.Y. 216; Brewster v. Hartley, 37 Cal. 15; Jarvis v. Rogers, 13 Mass. 105; Wheelock v. Kost, 77 Ill. 296; Brown v. Hitchcock, 36 Ohio St. 667.
The liability follows the stock. Whoever purchases it does so at the risk of this liability. Root v. Sinnock, 120 Ill. 350; Middletown Bank v. Russ, 3 Conn. 135; In re Empire City Bank, 18 N.Y. 119; Johnson v. Underhill, 52 N.Y. 203; McClaren v. Franciscus, 43 Mo. 452.
Bruckart & Brower, for respondents.
An objection that a finding of the court is not specific and distinct is waived unless a motion is made in the District Court to perfect such finding. Smith v. Pendergast, 26 Minn. 318; Cummings v. Rogers, 36 Minn. 317.
When the facts found justify the judgment, the same will not be reversed, if appellant did not ask for a finding on other facts, or for a more specific statement of the facts found. Bradbury v. Bedbury, 31 Minn. 163.
Plaintiff offered in evidence the stock book of the Cold Spring Opera House Company, which was received without objection, but it is not...
To continue reading
Request your trial