Great W. Tel. Co. v. Burnham

• Decision Date: 16 December 1890
• Citation: 79 Wis. 47,47 N.W. 373
• Parties: GREAT WESTERN TEL. CO. v. BURNHAM ET AL.
• Court: Wisconsin Supreme Court

79 Wis. 47

47 N.W. 373

GREAT WESTERN TEL. CO.

v.BURNHAM ET AL.

Supreme Court of Wisconsin.

Dec. 16, 1890.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.Quarles, Spence & Quarles, for appellants.

Shepard & Shepard, for respondent.

COLE, C. J.

This action was brought against George Burnham in his life-time, and, after his death, was revived against the executors of his will. The action is upon a contract of subscription to the capital stock of the plaintiff corporation. It appears from the complaint that Burnham, in May, 1869, subscribed for and agreed to take 100 shares of the capital stock, and pay for the same as follows: 5 per cent. of the par value down, and the balance of the par value--to-wit, $25 upon each share so subscribed for--from time to time as the directors of the corporation should order. Burnham has paid 40 per cent., or $10, on each share subscribed for, leaving 60 per cent., or $15, on each share unpaid. The complaint alleges that a large number of other persons besides Burnham also subscribed for the capital stock, to the extent and amount of all the shares into which the capital stock was divided, upon agreements similar in all respects to Burnham's agreement. It is further stated in the complaint that, in November, 1869, a suit was commenced in the circuit court of Cook county, Ill., wherein one Terwilliger, a stockholder, was plaintiff, in behalf of himself and other stockholders similarly situated, against the plaintiff corporation and other defendants, which suit is still pending and undetermined. The corporation appeared in that action, and submitted to the jurisdiction of the court. In the proceedings therein taken, the court, among other things, took control of the powers and property of the corporation, appointed a receiver, with the usual powers of a receiver, to take charge of the affairs of the corporation, manage its business, collect the assets, and pay the debts of the corporation. It is alleged that in July, 1886, the corporation was justly indebted to sundry persons in a large amount, namely, in the sum of $400,000, the whole of which indebtedness accrued against the company after Burnham entered into his contract of subscription, and that the corporation has no property, except the amounts unpaid upon the shares of the capital stock, to pay or meet this indebtedness; that the unpaid shares are largely in excess of said indebtedness. And it is further alleged that, before said last-named date, a small number of its stockholders had paid to the plaintiff $25 on each of its shares of stock subscribed for by them respectively, being the par value, and in full of the same; that none of the remainder of said stockholders and subscribers had before said last-named date, nor have any of them now, paid more than $10 upon each of the shares of the capital stock severally subscribed for, or held by them; that many of them have never paid more than 50 cents upon each of such shares severally subscribed for by them, and there was, on said last-named date, a balance and amount unpaid upon each of the shares of the capital stock, (except those which had been paid for in full, as aforesaid,) including those subscribed for by the defendant Burnham, of not less than $15, which the stockholders are severally liable to pay, when called upon and ordered to pay according to the terms of their several agreements of subscription; and that the stockholders have been ordered to contribute 35 per cent. of the par value of the shares of stock subscribed for, to be used and applied to the payment of the indebtedness of the corporation, and of the...