Glenn v. Hunt

• Decision Date: 19 February 1894
• Citation: 120 Mo. 330,25 S.W. 181
• Parties: GLENN v. HUNT.
• Court: Missouri Supreme Court

25 S.W. 181

120 Mo. 330

GLENN v. HUNT.

Supreme Court of Missouri, Division No. 1.

February 19, 1894.

DEPOSITIONS — VALIDITY — EVIDENCE — STATUTE OF SISTER STATE — CORPORATIONS — SUBSCRIPTIONS FOR STOCK — ACTION FOR UNPAID SUBSCRIPTIONS — FORMER ADJUDICATION — TRUSTEE OF EXPRESS TRUST — WHAT IS — INSTRUCTIONS — HARMLESS ERROR.

1. A commission to take depositions in another state may be issued without notice to the opposite party that application would be made therefor, as such commission is issued as a matter of right, on proper application. Rev. St. 1889, § 4435.

2. It is not necessary that interrogatories be annexed to the commission, under Rev. St. 1889, § 4439, authorizing the officer to whom the commission is directed to examine the witness "touching his knowledge of anything relating to the matter in controversy."

3. A book containing the title: "Acts of the General Assembly of the State of Virginia, Passed in 1865-66, 89th Year of the Commonwealth. Richmond: Allegre & Goode Printers, 1866," — is competent evidence, in a Missouri court, to prove a law of Virginia; Rev. St. 1889, § 4835, providing that printed volumes purporting to contain the laws of a sister state shall be admitted as prima facie evidence of the statute of such state.

4. Such book was admissible, though not certified to by the secretary of the state of Missouri or of Virginia, as Rev. St. 1889, § 4832, providing that copies of any act contained in any printed statute book of another state shall be prima facie evidence of such act, if certified as a correct copy by the secretary of state of such state or of Missouri, applies only to copies of acts, and not to printed volumes.

5. The promoters of a proposed Virginia corporation agreed that the capital stock should be $5,000,000. About a month before defendant's testator subscribed for stock therein, its executive committee passed a resolution to increase the capital stock to $10,000,000; but the resolution was never approved, and the change was never made. No misleading information was given out by those in charge of the organization, and testator could easily have advised himself of the failure to make the change in the amount of the capital stock. Held, that he subscribed without condition as to the proposed increase.

6. A judgment in favor of one to whom testator had assigned the stock in an action to recover unpaid calls is no bar to an action against defendant therefor, since, under the Virginia statute, both assignor and assignee are liable for any installment already accrued or thereafter to accrue, and a judgment for or against one would be no bar to an action against the other for the installments.

7. Where such corporation assigned to trustees for the benefit of creditors all its property and rights, including balance due from stockholders, a decree of the Virginia court substituting plaintiff as trustee for the old trustees makes him the trustee of an express trust, within Rev. St. 1889, § 1991, authorizing such trustee to sue in his own name without joining with him the person for whose benefit the suit is prosecuted.

8. Though it is error to send an additional instruction to the jury room after the cause has been argued and submitted, such error will not operate to reverse, where the facts and law contained therein were undisputed, and no prejudice to either party could have resulted therefrom.

Appeal from St. Louis circuit court; W. W. Edwards, Judge.

Action by John Glenn, trustee of the National Express & Transportation Company, against Mary C. Hunt, executrix of the estate of Charles L. Hunt, deceased. There was judgment for plaintiff, and defendant appeals. Affirmed.

C. M. Napton, for appellant. T. K. Skinker, for respondent.

MACFARLANE, J.

This is an action by plaintiff, as trustee of the National Express & Transportation Company, to recover from the estate of Charles L. Hunt, deceased, calls aggregating 80 per cent. on 50 shares of the capital stock of said company, of the par value of $100 per share. The petition charges that, in the year 1865, Charles L. Hunt, defendant's testator, subscribed $5,000 to the capital stock of said company, which is a corporation under a special act of the legislature of Virginia; that said subscription was subject to call by the directors of the corporation; that calls — one of 30 and the other of 50 per cent. — had been made by a decree of the chancery court of Richmond, instead of the directors, as the corporation had become insolvent, and plaintiff had been appointed to collect the assets and settle its affairs. Judgment was asked for the amount of the two calls and interest, 20 per cent. of the original subscription having been paid. The answer is a general denial, and a special plea to the effect that C. L. Hunt never subscribed to the stock for himself, but that it was subscribed in his name; that he shortly afterwards transferred it to James H. Lucas; that this plaintiff had sued the heirs of James H. Lucas upon this liability for subscription to this same stock; that in this action there was judgment for defendant; and this judgment is pleaded in bar of the present action. There are other special pleas, which are not here insisted upon as defenses. The replication denied the new matter.

Preliminary steps for the promotion of the corporation were taken at Richmond, Va., in September, 1865. The plan was to make an act of the legislature of that state passed March 22, 1861, the basis of the corporation, (the object of which was to organize a national express company,) with an increase of the capital stock to $5,000,000. It was afterwards, on October 12, 1865, resolved, by an executive committee previously appointed, that the capital stock should be increased to $10,000,000, and that subscriptions to that amount be received, subject to ratification of the next general meeting of stockholders. This resolution was not approved by the meeting of stockholders held October 30, 1865. At this meeting it was resolved that the name of the corporation be changed to the National Express & Transportation Company. On December 12, 1865, the amended charter was passed by the legislature. By the amended charter the name was changed as proposed, and the capital stock was made $5,000,000, subject to be increased from time to time, by order of the board of directors, to any sum not exceeding $10,000,000. It was authorized to do business as soon as one-third of the capital stock should be subscribed, and $100,000 paid in. In the mean time subscriptions had been taken, until the amount actually subscribed amounted to about $4,300,000. Of this amount, Charles L. Hunt subscribed for 50 shares, amounting to $5,000. The books of the company show that this subscription was made November 1, 1865, and was credited with $11 per share on it. The books further show that on May 29, 1866, this stock was transferred to James H. Lucas. In September, 1866, the corporation, having become insolvent, made an assignment of all its assets to certain trustees named therein, for the benefit of its creditors, with authority and directions to the trustees to collect all debts, claims, and moneys payable, and apply the same to the liquidation of its debts. In 1871 a suit was commenced in the chancery court of Richmond, Va., by William W. Glenn, a judgment creditor, against the company and the trustees, which in 1880 resulted in removing the original trustees, and appointing plaintiff in their stead. It was decreed that the deed of trust was valid, and authorized the trustees to collect unpaid subscriptions for stock, only 20 per cent. of which had been paid. A call was thereupon made upon the stockholders for the payment of 30 per cent. of the par value of the stock subscribed or held by them, respectively. On the 26th day of March, 1886, a further call of $50 per share was made. This suit, commenced in February, 1887, was to recover from defendant's testator the amount due under the two calls.

1. Previous to the trial, defendant moved the suppression of a deposition taken in another state, upon the ground that the commission authorizing the deposition to be taken was issued by the clerk of the court without notice, and without having interrogatories annexed thereto. The motion was overruled, and the deposition was read on the trial. The statute does not require that the opposite party shall be given notice that application would be made for a commission to take depositions of witnesses residing out of this state, nor has it generally been the practice to give such notice. The commission is issued as a matter of right, by the court or clerk, upon a proper application therefor, under section 4435, Rev. St. 1889.

Neither do sections 4435, 4438, and 4439 require interrogations to accompany the commission. The commission is the only authority necessary to empower the officer to examine such witnesses as may be named by the party "suing for the same." That the examination may be general, and not confined to interrogations, is apparent from the language of section 4439, which authorizes the officer to examine the witness "touching his knowledge of anything relating to the matter in controversy." Another section of the statute (4448) makes provision for obtaining from the court, or the judge thereof in vacation, a special commission, which requires that notice of the application shall be given the adverse party, and that interrogatories be annexed to such commission, but plaintiff did not proceed under this section of the statute. The court correctly ruled on the motion.

2. In order to prove certain statute laws of the state of Virginia, plaintiff offered to read from two books, one of which contained this title: "Acts of the General Assembly of the State of Virginia, Passed in 1865-66, 89th Year of the Commonwealth. Richmond: Allegre & Goode, Printers, 1866." The other contained a similar title. Defendant objected that the books from which plaintiff offered...