Gainey v. Gilson
| Decision Date | 07 December 1897 |
| Docket Number | 18,220 |
| Citation | 48 N.E. 633,149 Ind. 58 |
| Parties | Gainey et al. v. Gilson, Receiver |
| Court | Indiana Supreme Court |
From the Lawrence Circuit Court.
Reversed.
Martin & Dye, Brooks & Brooks and Gardiner & Gardiner for appellants.
G. O Isenminger and Newton Cooke, for appellees.
Appellee, as the receiver of the Bedford Building Stone Company, instituted and prosecuted this action to recover of appellants, stockholders of said company. He recovered a judgment, from which appellants appeal and seek to have the same reversed on account of several alleged errors. The complaint filed by the receiver in this cause, substantially alleges the following facts: That the stone company of which he is receiver was duly organized and incorporated on June 11, 1891, under the laws of this State, and was doing business of mining, quarrying, selling, and shipping stone in Lawrence county, Indiana, and had its paternal and principal office located in the city of Bedford, in said county; that the defendants are members and stockholders of said corporation, owning and holding each the shares of stock as therein mentioned and set out; that on October 5, 1894, said company being insolvent, ceased to do business, and was placed in the hands of a receiver. The debts and liabilities due and owing by the said company to divers creditors, are alleged to amount to the sum of $ 15,000.00; and it is further averred that on April 15, 1895, under the order of the Lawrence Circuit Court, by which court the plaintiff had been appointed receiver of the concern, and in pursuance of the by-laws of said corporation, he made an assessment and call upon the shares of the capital stock held and owned by the defendants, of nine dollars on each share of the unpaid balance thereof remaining due and unpaid from each of said stockholders, for the purpose of paying the indebtedness of said company, and that he notified, in writing, each of said defendant stockholders of said assessment, and demanded payment thereof, etc. That the defendants are the only remaining solvent stockholders and members of the company, whose stock has not been fully paid. It is further averred that each and all of the defendants have wholly failed and refused to pay to the plaintiff the said assessments due, from each, upon their said shares of stock, and that more than eighteen months have elapsed since the subscriptions were made to said capital stock, and there remains due and unpaid on each share of the stock, belonging to said defendants, the sum of forty dollars. The prayer is that the court make assessments against said stockholders for the payment of said debts, and judgment is demanded for $ 15,000.00 to be apportioned as mentioned, among the defendants, and for all other and proper relief.
On the trial, the court made a special finding of facts, and stated its conclusions of law thereon, and over the exceptions of the defendants to the conclusions, and over their motion for a new trial, rendered a judgment in favor of the plaintiff for $ 10,200.00, which was apportioned by the court among the defendants, as therein ordered. The insistence of counsel for appellants is that the complaint is insufficient in several respects, and they also contend that the action is based on section 5077, Burns' R. S. 1894 (3869, R. S. 1881), and therefore, under the decision of Wood v. Harrison, 50 Ind. 480, that the appellants are not liable. It is evident, we think, that counsel are mistaken in their contention that the action is founded on the statute above cited, and therefore, the questions which they seek to present as to its force and effect require no consideration. The purpose or theory of the complaint, as disclosed by its general outlines, is to collect the unpaid assessments or calls due from appellants on their respective shares of the capital stock, for the purpose of being applied by the receiver, as averred, in payment of the debts of the company. The corporation of which appellee is receiver, is said to have been organized under the statutes relative to the incorporation of manufacturing and mining companies. Section 5060, Burns' R. S. 1894 (3859, R. S. 1881), which is a part of that law, requires the capital stock to be paid within eighteen months from the incorporation of the company, and the section next following provides for the collection of calls upon stock assessments by suit, in the event that the same are not paid within thirty days from the time appointed for the payment. The capital stock of a corporation is held to be a trust fund for the payment of its creditors, and when a stockholder has paid the full par value of his stock, his liability is terminated, and in the absence of a statute imposing upon him an additional liability, he cannot be compelled to respond to the corporation, nor to its creditors, in payment of any debts or obligations, except in cases where there has been a failure duly to incorporate, whereby the members of the concern may be said to constitute a co-partnership, and become liable as partners for the payment of the debts of the concern. See Toner v. Fulkerson, 125 Ind. 224, 25 N.E. 218; Bruner v. Brown, 139 Ind. 600, 38 N.E. 318, and authorities cited; Coleman v. Coleman, 78 Ind. 344; Trippe v. Huncheon, 82 Ind. 307; Coffin v. Ransdell, 110 Ind. 417, 11 N.E. 20; Davis v. Ladoga Creamery Co., 128 Ind. 222, 27 N.E. 494; Beach on Private Corporations, section 555. That a receiver of a corporation, under the authority of the court appointing him, may by an action enforce the common law liability against the delinquent stockholders and collect the amount due and unpaid upon their shares of capital stock, is a right, fully affirmed and settled by the authorities. Of course, in the collection of such subscription he is invested, in this respect, with no greater power than that which the corporation possessed, and is bound precisely in the same manner as it was. Beach on Private Corp., sections 716, 717, and 772; Beach on Receivers, sections 669 and 670; Billings v. Robinson, 94 N.Y....
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