McDonald v. Staples, 82.
| Decision Date | 17 May 1935 |
| Docket Number | No. 82.,82. |
| Parties | McDONALD v. STAPLES. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by John D. McDonald, receiver of Evelyn Carlyle, Inc., against Loren J. Staples. From the judgment, the defendant appeals.
Affirmed.Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.
Argued before the Entire Bench.
Anthony M. Swarthout, of Grand Rapids, for appellant.
Dunham & Sherk, of Grand Rapids, for appellee.
The plaintiff, as receiver of Evelyn Carlyle, Inc., a corporation, brought this action to recover from the defendant on a promissory note, reading as follows:
‘Grand Rapids, Mich., November 4, 1931
‘Loren J. Staples.’
In his answer defendant denied the right of plaintiff to recover on the note for a number of reasons stated therein. On October 2, 1933, plaintiff filed a motion for summary judgment. The undisputed facts, as disclosed by the pleadings and the affidavits filed, may be summarized as follows:
The articles of association of Evelyn Carlyle, Inc., filed with the secretary of state on November 6, 1931, under Act No. 327, Pub. Acts 1931 (the corporation code), were signed by the defendant as one of the incorporators thereof. It was stated therein that the ‘Amount of Paid-in Capital is $25,000.’ The defendant subscribed for 480 shares of the stock, and the note in question was given by him in part payment therefor. As treasurer of the corporation, he gave a written order for certain advertising of the corporation, which, being unpaid, was reduced to a judgment, and the plaintiff appointed a receiver on petition of the plaintiff in that action as a judgment creditor. The receiver was unable to discover any assets of the corporation except a safety deposit box in the vault of the Michigan Trust Company, kept in the name of the corporation. He secured an order from the chancery court, which appointed him to open such box, and notice thereof was given to the defendant; and, when opened, the note sued upon was found therein, and he took possession thereof.
The defense is based upon the averments in the affidavit of the defendant that the note sued upon was given for shares of stock in the corporation, contrary to the provisions of section 21 of the act, and is void; that the consideration therefor has failed, as no stock was issued therefor and none accepted by him; that the note was never delivered to the corporation, but was left in the safety deposit box in escrow, to be opened in the presence of Evelyn Carlyle and himself; that as a part of the consideration for said note Evelyn Carlyle agreed that defendant should have the business management of the corporation, but that, before any stockholders' meeting was held, she ‘assumed to dictate the entire business management of the corporation,’ and excluded him therefrom; that no legal shareholders' meeting, or meeting of the board of directors, of the corporation was ever held; and that it has never functioned.
An affidavit of his attorney, attacking the validity of the proceedings in the chancery case in which the plaintiff was appointed receiver, was also filed.
The trial court filed an opinion, in which he stated that the note in question was given by the defendant in payment of shares of stock in the corporation issued to him, ‘that the Articles of Association recite payment and list said note as cash,’ that it...
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...issue of fact.’ Michigan Court Rule No. 30, § 7 (1933). See, also, Dempsey v. Langton, 266 Mich. 47, 253 N.W. 210;McDonald v. Staples, 271 Mich. 590, 261 N.W. 86; and Maser v. Gibbons, 280 Mich. 621, 274 N.W. 352.' See, also, Terre Haute Brewing Co., Inc., v. Goldberg, 291 Mich. 401, 289 N.......
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AGNEW v. LIBBY
...1016; Ramsouer v. Midland Valley R. Co., 8 Cir., 135 F.2d 101; Maryland Casualty Co., v. Sparks, 6 Cir., 76 F.2d 929; McDonald v. Staples, 271 Mich. 590, 261 N.W. 86; Agress Const. Co. of Brooklyn v. Jurgens, 128 Misc. 12, 217 N.Y.S. 204. An issue of fact was raised which was not determinab......
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Agnew v. Libby
...1016; Ramsouer v. Midland Valley R. Co., 8 Cir., 135 F.2d 101; Maryland Casualty Co., v. Sparks, 6 Cir., 76 F.2d 929; McDonald v. Staples, 271 Mich. 590, 261 N.W. 86; Agress Const. Co. of Brooklyn v. Jurgens, 128 12, 217 N.Y.S. 204. An issue of fact was raised which was not determinable by ......
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Eston v. Robert Brown, Ltd.
...judgments, and one should not be entered where an issue as to a material fact is raised by the pleadings and affidavits. McDonald v. Staples, 271 Mich. 590, 261 N.W. 86.’ For the reason hereinbefore indicated the judgment entered must be vacated and the case remanded for trial. Costs to app......