Frederic G. Krapf & Son, Inc. v. Gorson
| Decision Date | 27 May 1968 |
| Court | United States State Supreme Court of Delaware |
| Parties | FREDERIC G. KRAPF & SON, INC., Plaintiff Below, Appellant, v. Sigmund GORSON, Defendant Below, Appellee. |
Appeal from Superior Court in and for New Castle County.
Clement C. Wood, of Allmond & Wood, Wilmington, for appellant.
Frank O'Donnell and Stanley C. Lowicki, of O'Donnell, Hughes & Lowicki, Wilmington, for appellee.
This is an appeal by Frederic G. Krapf & Son from the entry of a judgment after trial in favor of Sigmund Gorson. One question only is presented to us, viz.: May the president of a corporation, the charter of which has been proclaimed for failure to pay franchise taxes, be held personally liable upon a contract entered into by him in behalf of the corporation after the proclamation of the charter and before its revival?
The facts of this cause as found by the trial judge are sufficiently supported by the record, and we consequently shall not disturb his findings. We recite them briefly.
Gorson is president of Wilmington Boneless Beef Company, all of the stock of which is owned by him or members of his family. In effect, it is a one-man corporation. Krapf & Son is a contractor and claims that in late 1962 it entered into an informal agreement for the erection of a slaughtering and manufacturing building. Both Krapf & Son and Gorson at the time intended the obligation to be that of the corporation, Wilmington Boneless Beef Company. A dispute ultimately took place and this action followed against Gorson, 'trading as Boneless Beef Company.'
On April 1, 1962, a date prior to the contract, the charter of Wilmington Boneless Beef Company was forfeited for nonpayment of annual franchise taxes for two consecutive years. Under 8 Del.C., § 510, upon this event, the charter became void and all its powers inoperative.
As a matter of fact, however, Gorson did not know of the actual forfeiture, it having come about by reason of his inadvertent neglect to file the annual reports and pay the franchise taxes.
At some time the fact of forfeiture of charter became known to Krapf & Son. This must have been prior to the institution of suit, since Gorson was sued 'trading as Wilmington Boneless Beef Company.' Indeed, Krapf & Son's counsel so stated at the argument. In any event, Gorson defended on the ground that he was not personally liable.
At the trial counsel for Krapf & Son produced a certificate of the Secretary of State evidencing the forfeiture of the charter of Wilmington Boneless Beef Company. The trial was recessed for one week and Gorson had the charter reinstated during the interim. The trial court held that the parties intended and believed that the contract was entered into with the corporation, Wilmington Boneless Beef Company, that the charter forfeiture did not prevent suit against the corporation, and that Gorson was not individually liable.
It is true that 8 Del.C., § 510, provides that, upon forfeiture of a charter for failure to pay franchise taxes, all of the corporation's powers become inoperative, but this provision must be read in the light of 8 Del.C., § 312 which provides for a method of reinstating corporate charters which have been forfeited. Subsection (e) provides that upon reinstatement of a charter all contracts and other matters done and performed by the corporate officers during the time the charter was inoperative shall be validated, and be the exclusive liability of the corporation.
The result of the reinstatement of the Wilmington Boneless Beef charter was, therefore, to validate the contract with Krapf & Son as a binding contract with the corporation for breach of which it could be sued. By the same act, the...
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