Glenn v. Hunt
| Decision Date | 19 February 1894 |
| Parties | Glenn, Trustee, v. Hunt, Executrix, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.
Affirmed.
C. M Napton for appellant.
(1) The court erred in overruling the motion to suppress the Smoot deposition; section 4435, Revised Statutes, 1889, requires a dedimus. See Seymour v. Farrell, 51 Mo. 95. (2) The trial court also erred in admitting the two volumes as evidence of the laws of Virginia. State v Williamson, 57 Mo. 199. (3) Col. Hunt was released from liability upon his subscription by a material change in the charter of the proposed company. The charter passed by the Virginia legislature December 12, 1865, takes the act of March 22, 1861, as a basis, but incorporates a company with $ 5,000,000 capital. See sec. 2, p. 37, of said pamphlet. Prior to this, November 1, 1865, the public were notified that the company "is just organized" and Hunt must have thought he was subscribing to company with $ 10,000,000; i. e., a company with a capital large enough to transact the business proposed. Hunt never knew of the change, or the only evidence bearing on that point is that shortly after the legal organization he transferred his stock to Jas. H. Lucas, and got out of it, or thought he did. Railroad v. Hughes, 22 Mo. 291; Livingston v. Lynch, 4 J. C. R. 573; Railroad v. Croswell, 5 Hill, 383; Turnpike v. Locke, 8 Mass. 268; Turnpike v. Swan, 10 Mass. 384; Canal Co. v. Towne, 1 N.H. 49; Turnpike v. Phelps, 2 Penn. 184; Angell & Ames on Corp. [3 Ed], 483; Davis v. Hawkins, 3 Maule & S. 488; Winter v. Railroad, 11 Ga. 451; In Ins. Co. v. Beckman, 47 Mo. 97, the court expressly held (p. 97 ad fin.) that the liability of the defendant did not arise by virtue of that particular amendment, nor did it appear that it was in any way affected by it; hence that decision is not in point. (4) A subscriber for stock is released from his subscription by a subsequent alteration of the plan of organization, which materially and fundamentally changes the nature of the obligation of the subscriber. Nugent v. Supervisors, 19 Wall. 251, cases cited; Co. v. Chapman, 38 Conn. 56; Clark v. Co. 10 Watts, 364; Co. v. Quick, 23 N. J. L. 321. (5) The judgment in the case of Glenn v. Lucas, was a bar to this action. (6) A receiver can not sue in a foreign jurisdiction for the property of the debtor. Ins. Co. v. Needles, 52 Mo. 17; Naylor v. Moffett, 29 Mo. 126; Booth v. Clark, 17 How. (U.S.) 322; Holmes v. Sherwood, 3 McCrary, 407. There is a contrary view expressed by Judge Rombauer in Glaser v. Priest, 29 Mo.App. 1. But he is overruled by the supreme court in the cases cited above and below. The doctrine is borne out and shown to have the support of the best authority. High on Receivers [2 Ed.] sec. 47. (8) The court erred in giving additional instructions to the jury after they had retired to consider their verdict, and the instructions so given were erroneous.
T. K. Skinker for respondent.
(1) The motion to suppress Smoot's deposition was properly overruled. It was taken under sections 4435-4442, Revised Statutes, not under sections 4448-4452. Shepard v. Railroad, 85 Mo. 629. (2) The Virginia Session Acts of 1861 and 1865 were properly received in evidence. R. S., sec. 4835; Cummings v. Brown, 31 Mo. 309; Williams v. Williams, 53 Mo.App. 619; Best on Evidence [Chamberlayne's Ed.], p. 457, note f. Carey's testimony was properly received to show that the books used in evidence are received as law in Virginia. Spaulding v. Vincent, 24 Vt. 501; The Pawaschick, 2 Lowell, 142; Barrows v. Downs, 9 R. I. 446; Church v. Hubbart, 2 Cranch, 237; Story, Confl. Laws, sec. 641; Ennis v. Smith, 14 How. 400. (3) Defendant's testator was not released from liability by reason of any material change in the charter. There was no such change as is claimed. But if there had been it would not have affected the stockholder's liability. Railroad v. Renshaw, 18 Mo. 210. Besides, Hunt accepted the stock, paid calls on it, held it six months and sold it. It is now too late to repudiate it. Haskell v. Worthington, 94 Mo. 560; Ins. Co. v. Beckmann, 47 Mo. 97; Eaton v. Aspinwall, 19 N.Y. 119; Deaderick v. Wilson, 8 Baxter, 128; Railroad v. Hatch, 1 Disney, 84; O'Donald v. Railroad, 14 Ind. 259; McCarthy v. Lavasche, 89 Ill. 270; Rice v. Railroad, 21 Ill. 93; May v. Railroad, 48 Ga. 109; Lime Co. v. Green, L. R. 7 C. P. 43.
OPINION
This is an action by plaintiff, as trustee of the National Express and Transportation Company, to recover from the estate of Charles L. Hunt, deceased, calls aggregating eighty per cent. on fifty 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 thirty and the other of fifty 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, twenty 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 Jas. H. Lucas; that this plaintiff had sued the heirs of Jas. 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, Virginia, 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 and 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 meantime 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, Virginia, by Wm. 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 twenty per cent. of which had been paid. A call was thereupon made upon the stockholders for the payment of thirty per cent. of the par value of the stock subscribed, or held by them, respectively. On the twenty-sixth 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.
I. 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.
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,...
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