Pitman v. Ball
| Decision Date | 03 January 1910 |
| Citation | 124 S.W. 1082,140 Mo.App. 389 |
| Parties | L. PITMAN, Respondent, v. JAMES BALL, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.
AFFIRMED.
STATEMENT.--This is an action by respondent against appellant as a stockholder of the Investors' Mining Company to recover a judgment obtained on a debt due from Investors Mining Company to respondent, alleging and claiming that appellant had subscribed for $ 12,500 of the stock of said company and had not paid for same. The answer was a general denial and plea of five year statute of limitations. In 1899 George Wright and defendant James Ball had secured mining leases covering forty acres of land near Webb City. July 26, 1899, Wright Ball and three other parties formed a corporation. The articles of incorporation recited a paid up capital stock of $ 100,000, divided into one thousand shares of one hundred dollars each of which defendant Ball was the owner of 125 shares, which would make his part of the capital stock $ 12,500. As a matter of fact, no money was paid in at the time of the formation of the corporation, but the mining leases held by Ball and Wright were the only capital of the corporation. There was an understanding that the other parties, Garner, Hammett and Watson, were to furnish money to erect mills and pay expenses until the mines should become self-supporting, but there was no agreement as to how much they were to furnish. They did furnish means to erect a mill at a cost of $ 13,000. The mines were operated for awhile but in 1902 their property was disposed of and the corporation dissolved. During the time they were running they became indebted to various parties, among others, the plaintiff. The plaintiff also purchased accounts against the corporation from various other parties, brought suit thereon and obtained judgment November 21, 1902, against the Investors Mining Company for $ 2,188.90. Included in this judgment was an account of the Jasper County Supply Company which had been assigned to plaintiff. The itemized statement of this account shows the date of the last charge to have been June 1, 1899. Upon this account there was a credit by cash of $ 2.60, dated April 9, 1900. This suit was begun by plaintiff March 25, 1905. There was a trial, the court found that defendant owed more than $ 3,000 on his stock, and rendered judgment for plaintiff for $ 2,845.55. Defendant has appealed.
Judgment affirmed.
Wilbur J. Owen and McReynolds & Halliburton for appellant.
(1) The right of a creditor to enforce the liability of a stockholder under section 987 accrues at the majority of the claim against the corporation from which time the Statutes of Limitations begins to run. McGinnis v. Barnes, 23 Mo.App. 413; McGinnis v. Kortkamp, 24 Mo.App. 378. (2) A judgment is a single and indivisible cause of action and where plaintiff is not entitled to recover against defendant one part of the indebtedness included in the judgment, he can not recover the whole or any part of the judgment. Black on Judgments, sec. 735; Bank v. Nooman, 88 Mo. 372; Leonard v. Railroad, 68 Mo.App. 48; Bank v. Cramer, 78 Mo.App. 475; 1 Shinn on Attachment, sec. 135, p. 185; Harrison & Calhoun v. Mining Co., 106 Mo.App. 32. (3) The stock being issued to Ball as fully paid and he claiming all the time that his stock was fully paid the Statute of Limitations began running from the date of the delivery of the subscription to the company, 1899, against any claim on Ball for unpaid capital stock. Baltimore etc. Co. v. Barnes (Md.), 6 Har. & J. 57; Hawkins v. Donnerberg, 40 Or. 97, 66 P. 691; Harris v. Gateway Land Co., 128 Ala. 652, 29 So. 611; Williams v. Meyer, 41 Hun 545; Railroad v. Plumber, 37 Pa. 413; R. S. 1899, sec. 4273.
H. W. Currey and F. L. Forlow for respondent.
(1) Section 1330, Revised Statutes 1899, is obsolete and has no possible bearing on this case. Houser v. Thompson, 56 Mo.App. 85; Banking Co. v. Mfg. Co., 168 Mo. 634. (2) Stockholder's liability for unpaid stock subscription is a contingent liability and matures against the stockholder at the time all of the tangible assets of the corporation disappear, or at the date of the dissolution of the corporation. Garesche v. Lewis, 15 Mo.App. 565, s. c. 93 Mo. 197; Stevens v. Stevens, 172 Mo. 36; Bank v. Bank, 107 Mo. 133; Bank v. Ridge, 57 F. 279; Howell v. Manglesdorf, 33 Kan. 194. (3) The liability of the defendant as a stockholder is contingent, not primary; he was not the debtor of the creditors of the corporation and the Statute of Limitation runs from the date of the dissolution of the corporation or the date of the return, nulla bona of the execution. Donnelly v. Hodgson, 13 Mo.App. 15. (4) It is the separate and several duty of each incorporator who subscribes for the stock of a corporation in the organization thereof, to see that its capital stock is fully paid, and if property is turned over to the company for and as its capital stock he must, at his peril, see that such property is reasonably worth the specified amount of its capital. Van Cleve v. Burkley, 143 Mo. 136; Perry v. Rood, 168 Mo. 331; Hobart v. Shields, 172 Mo. 491; Rumsay v. Mfg. Co., 173 Mo. 551; Myers v. Milling Co., 192 Mo. 162; Bank v. Rockefeller, 195 Mo. 15; State v. Hogan, 163 Mo. 43; Missouri v. Paducah Iron Co., 90 Mo.App. 568.
Defendant assigns as error the action of the court in excluding certain testimony. That the finding of the court is contrary to the evidence under the law, and the refusal of the court to give one instruction asked by defendant.
1. The contention of defendant is that his stock in the corporation was fully paid up. That his interest in the mining lease at the time the corporation was formed had an actual value equal to or in excess of the face of his stock, $ 12,500. At the trial, defendant offered to prove that in the latter part of 1903 or the early part of 1904, the parties who at that time, held a lease upon the same land covered by the lease when this corporation was organized, had sold his lease for $ 60,000. On objection of plaintiff that the time was too remote from the time of the organization of this corporation and that it had no tendency to show the actual value of the property at the time the corporation was organized, this offer was rejected and objection sustained. We do not think the court committed error in excluding this testimony. A sale of a lease upon the same land four or five years after the date of the formation of this corporation would, in our judgment, throw no light upon the question as to the actual value of the lease held by Wright and Ball in 1899.
2. It is next contended by defendant that the finding of the court is against the weight of the evidence. That the cause should be reversed for that reason. The evidence shows that Wright and Ball paid nothing for the lease which they obtained and which formed the capital stock of the corporation at the...
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