I. Glee Wheelock v. A. L. Haskell

• Decision Date: 29 May 1924
• Citation: 124 A. 713,98 Vt. 47
• Parties: I. GLEE WHEELOCK ET AL. v. A. L. HASKELL ET AL
• Court: Vermont Supreme Court

124 A. 713

98 Vt. 47

I. GLEE WHEELOCK ET AL. v. A. L. HASKELL ET AL

Supreme Court of Vermont

May 29, 1924

November Term, 1923.

ACTION OF CONTRACT against directors of a corporation under G. L 4931. Plea, general issue. Trial by the city court of city of Montpelier, Fred L. Laird, City Judge. Judgment for the defendants. The plaintiffs excepted. The opinion states the case. Affirmed.

Judgment affirmed.

H C. Shurtleff for the plaintiffs.

J Ward Carver and J. W. Gorden for the defendants.

Present: WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

BUTLER

The complaint is in the name of I. Glee Wheelock and Flora Brown as individuals. The plaintiffs seek to recover of the defendants, as directors of the Woodbury Co-operative Creamery Company, Inc., under the statute G. L. 4931, a debt due them from the creamery company, on the ground that the defendants have never complied with the statute by filing a copy of the certificate of capital paid in. The writ is dated January 12, 1921. So far as appears by the record, the case stands on general denial.

The Woodbury Co-operative Creamery Company was a corporation organized under the General Laws.

G. L. 4931 provides that before a corporation commences business the president and clerk shall have made a certificate under oath, stating the amount of capital actually paid in, which shall be filed in the office of the Secretary of State, and a certified copy thereof filed with the clerk of the town in which the principal place of business of the corporation is to be located; and it further provides that if the corporation contracts debts before a copy of its articles of association and such certificate is filed with the town clerk, the president and directors assenting thereto shall be personally liable for such debts. The articles of association of the corporation, in due form, were filed with the Secretary of State on April 26, 1916, and in the town clerk's office in Woodbury May 10, 1916. The president and clerk attempted to comply with the requirements of the statute with reference to the certificate of paid in capital; what was done was this: They made and executed the certificate called for, and forwarded it to the Secretary of State, who received it on January 9, 1920. On the same day it was returned to the corporation, indorsed as follows:

"State of Vermont, office of Secretary of State, filed January 9th, 1920.

Rawson C. Myric, Deputy Secretary of State."

It was accompanied with a letter from the secretary stating that it was in proper form, but should have with it a certificate of proposed issue of capital stock, a form of which was inclosed, and suggesting that this certificate should bear the same date as the certificate of paid-up capital. The latter certificate was filed in the office of the town clerk of Woodbury on January 15, 1920, but no certified copy thereof was ever so filed.

Later, a certified copy of it was filed in the office of the Secretary of State, but that fact is not important here; nor is the fact that no record of the filing of the original certificate was made in that office.

While this statute (G. L. 4931) is not penal in the full sense of the term (see Wellman v. Mead, 93 Vt. 322 107 A. 396; Huntington v. Attrill, 146 U.S. 657, 36 L.Ed. 1123, 13 S.Ct. 224), it is penal in character, and should be strictly construed against one who seeks to establish liability thereunder. It imposes a burdensome liability on the directors for their wrongful omission, and it should not be extended beyond the clear import of its terms, or given effect any farther than required to accomplish the purpose for which it was enacted. The fact that the officers of this corporation failed of a literal compliance with the terms of the statute is by no means conclusive against the defendant. Statutes are to be so construed as to give effect to the real purpose of the lawmaker. (In re Estate of Woolley, 96...