Garesche v. LeWis

• Decision Date: 10 June 1884
• Citation: 15 Mo.App. 565
• Parties: E. A. B. GARESCHE, Appellant, v. M. D. LEWIS, ADMINISTRATOR, Respondent.
• Court: Missouri Court of Appeals

15 Mo.App. 565

E. A. B. GARESCHE, Appellant,

v.M. D. LEWIS, ADMINISTRATOR, Respondent.

St. Louis Court of Appeals, Missouri.

Jun. 10, 1884.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

SMITH & HARRISON, for the appellant: A mere abandonment of the corporate enterprise does not of itself work a dissolution of the corporation.-- Kansas, etc., Co. v. Sauer, 65 Mo. 279; Hill v. Fogg, 41 Mo. 563; State Bank v. Robidoux, 57 Mo. 446. A contingent demand is really no demand until the contingency happens, and that the two years statute begins to run only on the happening of the contingency.-- Greenabaum v. Elliott, 60 Mo. 25, 32; Barton v. Rutherford, 49 Mo. 255. A stockholder's liability is secondary and not primary.-- McLaren v. Franciscus, 43 Mo. 452, 465; Thompson on Stockholders, sect. 29; Morawetz on Corporations, 616. The liability of the stockholder to the creditor is in the nature of a contract. The right and liability are several and not joint, and an action will lie at law; and this even irrespective of section 745. This is now well settled in this state.-- Perry v. Turner, 55 Mo. 418, 428, and cases cited; Hogdson v. Cheever, 8 Mo. App. 318, and cases cited; Prov. Sav. Inst. v. Skating Rink, 52 Mo. 552, 555; Railway Supplies Co. v. Harbine, 2 Mo. App. 134. We think that our administration law covers every case of a contract, whether contingent or not, made by a decedent in his lifetime. In such cases the source of the court's jurisdiction is the administration statute, and this court has powers full enough to cover every such case.-- Manville v. Edgar, 8 Mo. App. 324; Pierce v. Calhoun, 59 Mo. 271; Tetterington v. Hooker, 58 Mo. 593; Chambers' Admr. v. Smith's Admr., 23 Mo. 174.

GOTTSCHALK & BANTZ, and FINKELNBURG & RASSIEUR, for the respondent: All demands against the estate of any deceased person must be exhibited and presented for allowance within two years from the date of the letters of administration.--Rev. Stats., sects. 185, 189. Cassatt v. Vogel, 12 Mo. App. 323. Unmatured debts not so presented within two years, are barred.-- Hicks v. Jamison, 10 Mo. App. 35; Walker v. Byers, 14 Ark. 246. The petition alleges that the Gravois Railroad Company became a dissolved corporation on the 20th day of August, 1878, hence, whatever rights plaintiff can claim against deceased as a stockholder, by virtue of section 745 of the corporation law, accrued to him on that day, and could have been preferred against the estate from that day on, either by presentment in the probate court or by an action in the circuit court.--Rev. Stats., sect. 745; State Saving Association v. Kellogg, 52 Mo. 583; Thompson's Liability of Stockholders, sect. 290; Perry v. Turner, 55 Mo, 425. The dissolution of a corporation operates to mature the liability of its stockholders.-- Baker v. Bank, 9 Metc. 182; Terry v. Tubman, 92 U. S. 156; Hotch v. Dana, 101 U. S. 205; Larkin v. Willi, 12 Mo. App 135.

BAKEWELL, J., delivered the opinion of the court.

The allegations of the petition are substantially as follows:--

Stone, a resident of St. Louis, died there, intestate, on the 20th of May, 1877. On the 2d of January, 1883, Lewis, public administrator, took charge of his estate. The Gravois Railroad Company was, on the 22d of December, 1859, incorporated by the State of Missouri. The Grand Avenue Railroad Company which was, on the 14th of February, 1874, a corporation organized under the laws of Missouri, on that date, issued certain first mortgage bonds, each for the sum of one thousand dollars, payable for value received to J. T. Howenstein or bearer on the 14th of February, 1884, with interest at ten per cent per annum, on presentation of the coupons attached. To each of these bonds were attached twenty coupons of $50 each, payable at intervals of six months from the date of the bonds. Before the maturity of any of the coupons, plaintiff, for value, acquired seventeen of these bonds with the coupons attached, and is now the holder and owner of them. The bonds in question are set out by their numbers. On each of these seventeen bonds, are due the coupons that matured on the 15th of August, 1881, 15th of February and August, 1882, and 15th of February, 1883, making $3,400, which with the interest from the maturity of the coupons, is due plaintiff. On the 7th of November, 1874, by virtue of an agreement in writing between them, and in consideration of the mutual covenants therein, the Grand Avenue Railroad Company leased to the Gravois Railroad Company and its assigns, for a term of twenty years from that date, that part of its road then built in St. Louis and the privilege of operating the same, and sold and delivered to the Gravois Railroad Company its cars and live stock and other property, in consideration of which, the Gravois Railroad Company agreed with the Grand Avenue Railroad Company and with the present and future holders of its bonds, that it would guarantee to the holders by proper memoranda on these bonds the prompt payment at maturity of these bonds, and then assumed the payment at maturity of these bonds and their coupons. In pursuance of this agreement the Gravois Railroad Company received the property aforesaid, the Grand Avenue Railroad Company carried out the terms of the agreement, and the Gravois then and there, by proper indorsement on the back of these bonds, guaranteed the payment of them and their coupons. On the 1st of January, 1875, the Grand Avenue Railroad Company became wholly insolvent, then and there ceased to carry on business, disbanded its board of directors, discharged all its officers and employees, discontinued its corporate existence and was and still continues to be, without property of any kind. On the 20th of August, 1878, the Gravois Railroad Company also ceased business, disbanded it directors, discharged its employees and officers, sold its property, and then and there became, and ever since has been, dissolved and insolvent.

The capital stock of the Gravois Company was 6,000 shares, of the par value of $50 each, of which Stone owned and held, at the time of the issuing of the bonds and up to his death, 4,000 shares, on which nothing whatever was paid, on which account plaintiff charges that defendant, as administrator of Stone, owes him the amount due upon the coupons aforesaid with interest, for which he asks judgment. Defendant by his answer admits the allegations as to the death of Stone and administration of defendant, and says that, if the Gravois Railroad Company ever existed it was dissolved long before August 20, 1878. The answer puts the other allegations of the petition in issue, and further answers substantially as follows:--

8. Stone died on April 7, 1877. Letters were granted on May 21, 1877, to his widow, who qualified, and on 4th day of June, 1877, gave the notice required by law, which was duly published. The facts as to this notice are fully set out, so as to show a compliance with the law. By reason of her marriage, Mrs. Stone's letters were revoked on May 21, 1882, and defendant became administrator de bonis non. By reason of which, the claim of plaintiff is barred, because not exhibited within two years of the date of letters, nor within two years of the date of notice of letters.

9. The cause of action did not accrue within five years next before the commencement of this action.

10. Stone died intestate, leaving five children, whose names are set out, who, together with his widow, Elizabeth, since intermarried with James Hall, are alone entitled to any interest in his estate. These persons are all living and are necessary parties to this action.

Plaintiff moved to strike out the eighth, ninth, and tenth pleas. The court sustained the motion as to the tenth plea, and overruled it as to the other pleas.

The reply of plaintiff denied all new matter in the answer, except the allegations as to administration, and notice by the administrator, which he expressly admitted.

Defendant then moved for judgment upon the pleadings, upon the ground that, by the admissions, the action was not brought within the time required by law, and that there was no exhibition of plaintiff's demand...