"The
said Sherman County Banking Company, defendant, is indebted
to plaintiff in the sum of $ 3,768.88, with interest from
July 1, 1888, at nine per cent per annum, as per agreement on
an account stated between said parties, for moneys deposited
with and loaned to said banking company, said account being
so stated on July 1, 1888, upon which statement a balance of
$ 3,768.88 was found due plaintiff from said defendant, the
Sherman County Banking Company; no part thereof has been
paid, though often demanded.
"3.
There is due plaintiff from said defendant, the Sherman
County Banking Company, on an account current
the sum of $ 48.97. The following is a copy of said account
with all credits, to-wit:
"DR.
|
To rent of room occupied by said Sher-
|
man County Banking Company from
|
May 1, 1888, to January 1, 1889, at
|
$ 20 per month
|
$ 160 00
|
To rent collected of I. J. Hughes, as
|
agent of plaintiff, from July 22,
|
1888, to December 22, 1888, at $ 7
|
per month
|
35 00
|
"CR.
|
By taxes paid for plaintiff
|
$ 146 03
|
$ 195 00
|
To balance due
|
$ 48 97
|
"No
part thereof has been paid, though often demanded.
"4.
The defendants Ezra S. Hayhurst, Lyman J. Tracy, John Hogue,
Milton A. Theis, Edward E. Whaley, H. J. Shupp, Charles A.
Wheeler, William H. Morris, James K. Pearson, Joel R. Scott,
Charles W. Gibson, and William R. Mellor were, at the time of
contracting said debt by the Sherman County Banking Company,
defendant, stockholders of said corporation, and still are,
and at all times since November 1, 1887, have been,
stockholders of said corporation. 'The said corporation
made an assignment for the benefit of creditors on December
26, 1888, and is wholly insolvent.' (The last sentence is
an amendment inserted by leave of court June 20, 1889.)
"The
said Sherman County Banking Company, defendant, is not a duly
organized and duly incorporated company under the laws of the
state of Nebraska, but has wholly failed to comply with the
provisions of chapter 16, Compiled Statutes of Nebraska, in
relation to giving notice, and other requisitions of
organization, and has failed to comply with general
provisions of law governing corporations. Such
failure to comply with the law is specifically set forth as
follows, to-wit:
"(a.)
The articles of incorporation of said Sherman County Banking
Company, as filed and recorded in the county
clerk's office, of said county of Sherman, and state of
Nebraska, do not set forth the time and conditions on which
the capital stock of said corporation is to be paid in.
"(b.)
No notice of the incorporation or organization of said
Sherman County Banking Company was ever published by said
corporation in any newspaper near the principal place of
business of said corporation.
"(c.)
No copy of the by-laws of said corporation, with the names of
the officers appended thereto, was ever posted in a
conspicuous place at the place of doing business of said
corporation, in Loup City, Nebraska, subject to public
inspection.
"(
d.) No notice of the amount of all the existing
debts of said corporation was ever printed and published in
any newspaper, signed by the president and a majority of the
directors of said corporation, since the time of commencing
business of said corporation, on November 1, 1887, until the
present time.
"(e.)
The capital stock of said corporation was not fully
subscribed at the date of filing the articles of
incorporation of said Sherman County Banking Company, in the
county clerk's office of said county, nor at any time
thereafter.
"(f.)
The capital stock of said corporation was not paid for in
cash, but about 400 shares of said capital stock,
representing a nominal value of $ 40,000, was paid for with
the notes of said stockholders, payable to the order of said
corporation, and part of the remaining $ 10,000 worth of said
capital stock was paid for with real estate, which said
corporation had no power to take and hold, and with worthless
notes and securities belonging to Edward E. Whaley and Milton
A. Theis, formerly partners, doing business as bankers under
the firm name of the Sherman County Banking
Company, and only a very small portion of said capital stock
was paid for with cash, to-wit, about $ 3,000.
"(g.)
No quarterly statement under oath of the assets and
liabilities of said corporation was ever made and published
by said corporation as required by section 7, article XI, of
the constitution of the state of Nebraska, entitled
'Corporations,' subdivision 'Miscellaneous
Corporations.'
"6.
By reason of the failure of said corporation, defendant, to
comply with the provisions of the law as set forth in
paragraph 8, the defendants Ezra S. Hayhurst, Lyman J. Tracy,
John Hogue, Milton A. Theis, Edward E. Whaley, H. J. Shupp,
Charles A. Wheeler, William H. Morris, James K. Pearson, Joel
R. Scott, Charles W. Gibson, and William R. Mellor became and
are jointly and severally liable to the plaintiff for the
amount of the debt of said Sherman County Banking Company,
defendant, as set forth in this petition, as stockholders of
said corporation."
