Kehlor v. LaDemann

• Decision Date: 14 March 1882
• Citation: 11 Mo.App. 550
• Parties: JOHN C. M. KEHLOR, Plaintiff in Error, v. OTTO C. LADEMANN, Defendant in Error.
• Court: Missouri Court of Appeals

11 Mo.App. 550

JOHN C. M. KEHLOR, Plaintiff in Error,

v.OTTO C. LADEMANN, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Mar. 14, 1882.

1. For the sake of the remedy against the stockholders and in favor of creditors a virtual surrender of the corporate rights and a dissolution of the corporation may be presumed from a transfer of all the corporate assets, and from other circumstances which would not ordinarily create a dissolution per se.

2. Under the statute, creditors may, in such cases, bring their suits against any persons who were stockholders at the time of the dissolution of the corporation.

3. Stock issued by a corporation to a creditor in satisfaction of a debt due, is paid-up stock, and such stockholder is not liable to a creditor of the corporation as upon unpaid stock.

4. Where stock is issued for a sum less than the par value thereof, a creditor of the corporation may recover the difference from the stockholder.

ERROR to the St. Louis Circuit Court, BOYLE, J.

Reversed and judgment.

G. M. STEWART and PAUL BAKEWELL, for the plaintiff in error: The capital stock of a corporation is a trust-fund for the benefit of its creditors, and it must consist in money, or money's worth, paid in at the time the stock is issued to shareholders, thereby enchancing the creditor's security; or if the price be not paid, the purchaser's indebtedness may be looked to for the like effect.-- Chouteau v. Dean, 7 Mo. App. 210; Wight & Co. v. Steinkemeyer, 6 Mo. App. 575; Upton v. Tribelcock, 91 U. S. 45; Sawyer v. Hoag, 17 Wall. 610; Ogelvie v. Knox Ins. Co., 22 How. 380; Union National Bank v. Douglas, 1 McCrary, 90.

WALKER & WALKER, for the defendant in error: The stock was full paid, and the stockholder was not, therefore, liable to a creditor of the corporation.-- Phelan v. Hazard, 5 Dill. 45. An assignment by a corporation for the benefit of its creditors does not, per se, accomplish a dissolution.-- Kansas, etc., Co. v. Sauer, 65 Mo. 279; State Bank v. Robidoux, 57 Mo. 446; Hill v. Fogg, 41 Mo. 563.

LEWIS, P. J., delivered the opinion of the court.

This is a direct proceeding by the creditor of a corporation to recover against a stockholder an amount alleged to be due and unpaid upon his stock, in satisfaction of the plaintiff's claim against the corporation. The cause was heard below upon the following agreed statement of facts:--

“1. On the thirtieth day of December, 1879, the Joseph Uhrig Brewing Company, a corporation of Missouri, made an assignment under the laws of this state to Lucien Eaton, assignee, for the benefit of its creditors, of all the property and effects of the corporation, by deed of that date, recorded in book 626, at page 36, in the office of the recorder of deeds of the city of St. Louis.

2. That at that date defendant was the owner of three hundred and forty shares of stock of said corporation, of the par value of one hundred dollars each, which was then pledged as hereinafter described.

3. That there has been paid on account of the indebt edness of said corporation twenty-seven and one-half (27 1/2) cents on the dollar, and no more, and there are no other assets to be distributed.

4. That the capital stock of said corporation was $300,000.

That said Joseph Uhrig Brewing Company owed the plaintiff the amount called for by the notes described in the petition at the date of the assignment aforesaid, on account of which he has received twenty-seven and one-half (27 1/2) cents on the dollar.

That on the twenty-fourth day of May, 1876, Otto C. Lademann and August Uhrig and Josephine Lademann conveyed to the Joseph Uhrig Brewing Company, by deed recorded in book 544, at page 410, St. Louis City Records, for the consideration of $200,000, certain real estate therein described; and, on same date, Joseph Uhrig & Co. conveyed to said brewing company, for the consideration of $100,000, and other agreements, certain personal property described in bill of sale offered in evidence.

That one of the other agreements in said bill of sale described was that the Joseph Uhrig Brewing Company would pay and discharge all the debts and liabilities, of whatever nature, of said firm of Joseph Uhrig & Co., and of the estate of Joseph Uhrig, deceased.

That the property so conveyed was the Uhrig Brewery, the Uhrig Cave property, and the personalty appertaining to both.

That on said 24th of May, 1876, said Joseph Uhrig & Co. was indebted to defendant Lademann in the sum of $33,955.45.

That in satisfaction of said indebtedness of $33,955.45, said Joseph Uhrig Brewing Company issued and delivered to said defendant Lademann three hundred and forty shares of stock (each of the par value of $100) of said corporation, which three hundred and forty shares were accepted by said Lademann in satisfaction of said indebtedness; and thereupon, his name was entered as a stockholder in the books of said company, to the amount of said three hundred and forty shares.

That on or about September 17, 1879, said defendant Lademann pledged with H. A. Haeussler, assignee of the United States Savings Institution, to secure a debt due by said ...