Pittsburgh, W. & K.R. Co. v. Applegate & Son

• Decision Date: 09 December 1882
• Citation: 21 W.Va. 172
• Parties: PITTSBURG, WHEELING & KENTUCKY R. R. CO. v. APPLEGATE & SON.
• Court: West Virginia Supreme Court

21 W.Va. 172

PITTSBURG, WHEELING & KENTUCKY R. R. CO. v. APPLEGATE & SON.

Supreme Court of West Virginia.

December 9, 1882

Submitted Jun. 3, 1880.

(^[a1]SNYDER, JUDGE Absent.)

1. Upon a motion for a change of venue counter affidavits may be read; and if the court is satisfied from all the affidavits or other evidence for and against the motion, that the venue ought to be changed, it will in the exercise of its discretion remove the case, otherwise it will not. The exercise of this discretion is of course reviewable by the Appellate Court. (p. 179.)

2. Where the name of an individual appears upon the stock-book of a corporation as a stockholder, the presumption is, that he is owner of the stock, appearing in his name; and such book is proper evidence to go to the jury to show, that he was a subscriber to the capital-stock of the corporation. (p 180.)

3. A subscriber to the stock of a corporation can not escape his liability to pay his subscription, on the ground that he did not pay the sum required to be paid by the statute at the time he subscribed. (p. 183.)

Writ of error and supersedeas to a judgment of the circuit court of the county of Brooke, rendered on the 20th day of March, 1879, in an action at law in said court then pending wherein the Pittsburg, Wheeling and Kentucky Railroad Company was plaintiff, and Applegate & Son were defendants allowed upon petition of said plaintiff.

Hon Thayer Melvin, judge of the first judicial circuit, rendered the judgment complained of.

The facts of the case are fully stated in the opinion of the Court.

W. P Hubbard for plaintiff in error cited the following authorities: Code ch. 128, sec. 1; 7 Ind. 110; 10 Ind. 182; 4 Cold. 214; 8 Leigh 364, 366; Hall's Dig. 622; 2 W.Va. 59; Id. 73; 3 Bla. Cs. Com. 383; 5 Otto 418; 26 Me. 191; 9 R.I. 513; Code Va. (1860) ch. 57, sec. 25; Id. sec. 6; 29 Con. 148, 149; 24 Vt. 474, 475; 19 N.Y. 119; 26 Barb. 202; Thomp. Stockholders, secs. 162-170; 60 Me. 468; 5 Giel. 484; 36 Miss. 17; 6 Man. & G. (46 E. C. L.) 81 133; Thomp. Stockholders, sec. 107, note and cases there cited; 17 Ga. 574; 31 Tex. 465.

John J. Jacob for defendants in error cited the following authorities: 11 W.Va. 727; 1 Greenl. Ev. sec. 485; Code Va. (1860) ch. 57, sec. 25; 1 Caine's Cas. 86; 11 Johns. 98; 8 Serg. & R. 219; 13 Serg. & R. 256; 14 Serg. & R. 434; 12 Ired. 224; 8 Rich. 145; 21 Vt. 30; 16 Md. 422; 8 Conn. 483; 21 Wend. 211; 12 Ga. 170; 24 Md. 563.

OPINION

JOHNSON, PRESIDENT.

In 1873, the plaintiff brought its action of trespass on the case in assumpsit, in the circuit court of Brooke county, against the defendants. In the declaration filed is set out the incorporation of the company and the act of the Legislature of West Virginia incorporating the " Pan-Handle Railroad Company," as well as the act giving to the plaintiff all the rights of the said Pan-Handle Railroad Company, and alleging, that the defendants had subscribed for ten shares of the capital stock of the said Pan-Handle Railroad Company of the par value of ten dollars per share and that they paid thereon one dollar per share or ten dollars; that said Pan-Handle Railroad Company had at divers times demanded the pay ment of the residue of said subscription, which the defendants neglected and refused to pay; that the plaintiff, which had succeeded to all the rights and was subject to all the obligations of said Pan-Handle Railroad Company, had repeatedly after it had proceeded with the construction of said railroad, demanded of said defendants the payment of the balance of said subscription, which they had neglected and refused to pay to the plaintiff to the damage of plaintiff one thousand dollars, & c.

The defendants appeared and demurred to the declaration, which demurrer was overruled; and they then pleaded non assumpsit. The plaintiff, at the March term of said court, 1879, filed some nine affidavits as the foundation for a motion for a change of venue. The ground stated in the affidavits is, that prejudice existed against the plaintiff as to the subject of the suit in Brooke county, to such an extent, that it was impossible for it to have in that county a fair and impartial trial. The motion for a change of venue was resisted by the defendants, and they filed some twelve counter affidavits tending strongly to show, that there was no such general prejudice in said county against plaintiff as to the demand in said action and, that it could have a fair and impartial trial of the issue in said county.

On the 11th day of March, 1879, the court after considering said motion and the affidavits in support thereof together with the counter affidavits, overruled the motion for a change of venue, to which the plaintiff excepted.

On the 20th day of March, 1879, the issue was tried by a jury and a verdict rendered for the defendants. The plaintiff moved the court to set aside the verdict and grant it a new trial, which motion the court overruled, and entered judgment for defendants for their costs. In a bill of exceptions filed, all the evidence is certified. To the said judgment the plaintiff obtained a writ of error. The evidence as certified sets out the act of the Legislature of West Virginia incorporating the Pan-Handle Railroad Company, and the several acts amendatory thereto, the last of which is an act passed February 16, 1871, which changed the name of the corporation to " The Pittsburgh, Wheeling and Kentucky Railroad Company," and among other things provided, " that all contracts and liabilities to or from said Pan-Handle Railroad Company shall be transferred to and rest in the said Pittsburgh, Wheeling and Kentucky Railroad Company, which shall succeed to all the rights and be responsible for all the obligations of the Pan-Handle Railroad Company." It further provided, that all suits then pending on behalf of the Pan-Handle Railroad Company, might be prosecuted without delay, by inserting the name of the new corporation in place of the old, and the case should be tried and decided as though no change had been made.

The plaintiff introduced in evidence the minute book of the plaintiff and read therefrom the proceedings of a stockholders' meeting held at Wellsburg, March 29, 1869, by which it appeared, that pursuant to a notice inserted for four successive weeks in the newspapers published in said county of Brooke, the meeting was held in the court house of Brooke county. They proceeded to elect a president and board of directors, & c. On the same day it appeared in evidence, that the board of directors had a meeting and A. Kuhn, was authorized to collect one dollar per share upon the capital stock subscribed. It also appeared from the proceedings of the board of directors at a meeting held on the 13th day of December, 1870, that a committee was appointed to collect the assessment of ten dollars per share, remaining unpaid, and an additional assessment of ten dollars per share was made. It appeared from the evidence of H. G. Lazear, that he was an original subscriber to the capital stock of the company; that he was present at the organization of the company in the court house of Brooke county, on the 29th of March, 1869; that the stockholders were generally present; but could not say whether the defendants were there, supposed they were, but could not say positively; was present at the meeting on December 13, 1870, when it was decided to collect the first call, so far as it was unpaid, and to proceed and collect the full sum of one dollar per share; was appointed agent to make collections, and as such agent collected one dollar per share from the defendants. This was shortly after he was appointed agent. He told the defendants what his business was, and they paid him one dollar per share amounting to ten dollars. At that time the company were making preparations to open the road. He called on none except stockholders. They were mentioned to him as being stockholders, and they did not deny it; was present at a meeting in Wellsburg, in the court house, after the organization of the Pittsburgh, Wheeling and Kentucky Railroad Company, when the affairs of the company were under discussion; it was a kind of indignation meeting. Joseph Applegate was present and took an active part. The object of the meeting was to denounce the course pursued by the officers of the company. " Those in the meeting were rather going for the president, Mr. Lewis Applegate." He thinks this was in 1874, " some time after the road was broken down."

Joseph H. Pendleton testified, that some time subsequent to or about the time of the organization of the company, the original subscription papers in some way disappeared, and the company and the counsel for the company, have sought to find them but have not been able to do so. But they had a memoranda of the amounts taken on the books of the company. " The papers I say were but the original subscription lists, and I have seen them, and I have seen a subscription list with the name of Applegate & Son on. I can't say whether the names on these lists were copied on to other papers. I saw a book at the trial of Samuel George, with a list in it; never said I saw a list; I said I saw the subscription papers; I can say, that the paper on which I saw the name of Applegate & Son, was the original subscription paper, and the name of W. C. Barclay was on it for the same amount. I don't know, that Applegate & Son's name was on original subscription as I don't know his signature. I don't know anything about copied papers; never heard about copied papers until the other trial in court. I speak from original signatures." He further said, that " On the morning of the stockholders meeting to organize, I assisted Mr. Kuhn to make out a list of subscribers, from which this little book was...