Schaeffer v. Missouri Home Ins. Co.

• Decision Date: 31 March 1870
• Citation: 46 Mo. 248
• Parties: NICHOLAS SCHAEFFER, Respondent, v. THE MISSOURI HOME INSURANCE COMPANY, JOHN FINN, STOCKHOLDER, Appellant.
• Court: Missouri Supreme Court

46 Mo. 248

NICHOLAS SCHAEFFER, Respondent,

v.THE MISSOURI HOME INSURANCE COMPANY, JOHN FINN, STOCKHOLDER, Appellant.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

R. S. McDonald, for appellant.

I. There was no proof that the Missouri Home Insurance Company was ever organized, or that it ever had a corporate existence for any purpose whatever. (See Gen. Stat. 1865, ch. 67, § 7; 10 Wend. 266.)

II. There is no proof that Finn signed articles of association, and not having signed he did not become a stockholder under the provisions of section 4. Then he was not liable on the paper introduced in evidence. (Troy R.R. Co. v. Tibbits, 18 Barb. 297; Poughkeepsie R.R. v. Griffin, 24 N. Y. 150.)

III. As Finn paid nothing, he was not a stockholder, and his pretended subscription can not be enforced. (Gen. Stat. 1865, ch. 67, § 4; Hibernia Turnpike Co. v. Henderson, 8 Serg. & R. 219.) This was a case of first impression in this court. The case decided in 31 Mo. 19, North Missouri R.R. v. Mills, is not a parallel one. There the company was chartered and organized, and there was a direct promise to pay, and the court alludes to the promise to pay. In this case the signing is a mere preliminary step to a second signing. Here no amount is specified by the signer.

IV. The act of putting figures at the end of Finn's name, no matter by whom done, was a fraud and a forgery upon Finn.

V. This being an ordinary contract, and being in blank, is therefore void.

VI. The only competent proof of what the articles of association contain is by showing them in court; and further, by showing that they have been signed and filed in the office of the circuit clerk. (See Erie R.R. Co. v. Owen, 32 Barb. 616, in connection with section 4, chapter 67, Gen. Stat. 1865.)

Slayback & Haeussler, for respondent.

CURRIER, Judge, delivered the opinion of the court.

The plaintiff recovered judgment against the Missouri Home Insurance Company, upon which an execution was duly issued against the effects of that company. It was returned nulla bona, whereupon the plaintiff, in pursuance of the statute (Wagn. Stat. 291, § 13), moved for an execution against John Finn, the defendant herein. The motion recited the fact of the judgment and of the return of the execution as above stated, and then alleged that Finn held ten shares of the capital stock of said insurance company, of the par value of $1,000. On the hearing of the motion before the court, but one point was contested, namely: whether Finn was a stockholder as alleged. The plaintiff gave evidence tending to show that he was, and the court so found the fact to be. But the defendant complains of the action of the court in refusing certain declarations of law, one of which was to the effect that the plaintiff was not entitled to recover. This declaration is based upon the assumption that the corporate existence of the insurance company was not sufficiently shown. For the purposes of the motion, we think the judgment against the company was prima facie evidence of its corporate existence at the time that judgment was rendered. So much is implied in the judgment, and this is merely a proceeding for an execution thereon against Finn as a stockholder. If he would resist his liabilities as such on the ground of irregularities in the organization of the company, or on the ground of defects and deficiencies therein, he should point out such irregularities, defects,...