Schneider v. Johnson

• Decision Date: 06 May 1912
• Parties: SCHNEIDER v. JOHNSON.
• Court: Missouri Court of Appeals

147 S.W. 538

SCHNEIDER v. JOHNSON.

Springfield Court of Appeals. Missouri.

May 6, 1912.

Rehearing Denied June 3, 1912.

1. PLEADING (§ 428) — RECEPTION OF EVIDENCE —OBJECTIONS—SUFFICIENCY OF PETITION.

If the petition is sufficient to sustain a judgment, objection to introduction of evidence, on the ground that it does not state facts sufficient to constitute a cause of action, should be overruled.

2. CORPORATIONS (§ 252)—STOCKHOLDERS— LIABILITIES—ACTION BY CREDITOR.

A creditor of an insolvent corporation need not recover judgment against it before suing its stockholders on their liability for unpaid subscriptions.

3. PLEADING (§ 310)—PETITION—EXHIBITS.

Exhibits not being part of the petition cannot be considered in passing on its sufficiency.

4. CORPORATIONS (§ 254) — STOCKHOLDERS — LIABILITIES—ACTION BY CREDITOR.

A creditor of an insolvent corporation need not, before suing to enforce the liability of stockholders for unpaid subscriptions, wait till the corporation has been judicially dissolved or its charter has expired, but, as to him, it will be deemed dissolved when it has ceased to be a going concern, and has disposed of its tangible assets, and there is no probability of its again attempting to carry on its business.

5. PLEADING (§ 428)—PETITION—SUFFICIENCY — OBJECTIONS TO EVIDENCE THEREUNDER.

Though the petition, in an action by a creditor of a corporation to enforce defendant's liability on account of his unpaid stock subscriptions, did not specifically allege that defendant was a stockholder at the time of the corporation's dissolution, but was indefinite in merely alleging that he was a stockholder, and then asking judgment against him on the ground that he was a former stockholder, such indefiniteness, not having been called to the court's attention, is not ground for reversal, because of the overruling of the objection to introduction of evidence on the ground that the petition did not state facts sufficient to constitute a cause of action.

6. PLEADING (§ 423)—EXHIBITS—WAIVER.

Though Rev. St. 1909, § 1832, provides that if the items of an account alleged in a petition be not set forth in, or attached to, the petition, plaintiff shall be precluded from giving evidence thereof, yet unless defendant objects to introduction of evidence, or asks to have the account filed, he waives right to afterwards complain of evidence thereof having been admitted.

7. APPEAL AND ERROR (§ 1067)—HARMLESS ERROR—INSTRUCTIONS.

Where defendant under his own testimony is liable on account of his stock subscription for more than the amount sued for, any omission to instruct that, where property is taken in payment of a subscription for stock, the subscriber is liable only for the excess of the par value of the stock over the value of such property, is immaterial.

8. JUDGMENT (§ 890)—SATISFACTION — EXECUTION SALE.

One's judgment is not paid because of his levying an execution on property, and at the

sale thereunder bidding enough to pay the judgment and costs, the property being at the time covered by a mortgage, under which it is subsequently taken, so that the judgment creditor realizes nothing on his judgment.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Joseph Schneider against Charles T. Johnson. Judgment for plaintiff, and defendant appeals. Affirmed.

McIndoe & Thurman, of Joplin, for appellant. Merritt & Spiva, of Joplin, for respondent.

GRAY, J.

In 1909 the Wautauga Mining Company and the Red Fox Mining Company were organized under the laws of this state relating to business corporations. The Wautauga Company had a capital stock of $80,000, divided into 800 shares, and the Red Fox $50,000, divided into 500 shares. The articles of association of each company recited that the stock was paid in full. The appellant subscribed for one share of the Wautauga stock, and paid for same. He subscribed for 200 shares of the Red Fox stock, and paid thereon $3,000. Both companies maintained offices in Joplin, and engaged in mining in Jasper county, but proved to be financial failures, and ceased to transact business about a year before this suit was commenced. Their properties were covered by mortgages, and according to the testimony, they had no intention to, and were absolutely unable to, resume business. The Wautauga Company, at the time it ceased business, owed debts to numerous creditors of whom it had purchased supplies and machinery to enable it to carry on its mining operations, and this plaintiff was one of such creditors, and the accounts of 15 other creditors were assigned to him for collection, and this suit was instituted on these accounts and against the defendant for his unpaid subscription to the capital stock. The Red Fox Company, at the time it ceased to do business, was indebted to the plaintiff for machinery and supplies furnished, and was also indebted to 11 other creditors, who assigned their accounts to plaintiff, and a suit was instituted by plaintiff against the appellant on all of said demands, and seeking to recover on the theory that appellant had not paid for his stock and was indebted to the company therefor at the time it ceased to do business, and at the time the suit was instituted. The two suits were consolidated by agreement, and tried as one, and the plaintiff recovered a judgment on each count of the two petitions, and defendant appealed to this court.

It is claimed the petition fails to state a cause of action. As each count is practically the same, it will only be necessary to consider one. The second count charges: "That the Wautauga Mining Company was a corporation doing business in Joplin, Mo., in 1909, but on or about the 1st day of March, 1910, said corporation was dissolved by abandonment of its business and property, all its property being consumed by liens and mortgages, and it has now no assets or property, and the said corporation left among other debts unpaid an indebtedness due to the Home Powder Company, a corporation, in the sum of $27 for powder and blasting material, and the same remains due and unpaid. The said Home Powder Company has this day assigned its said account to this plaintiff for the purpose of collection, and the same is herewith filed marked `Exhibit B.' Plaintiff states that the defendant was the owner and holder of the stock of the said Wautauga Mining Company, of the par value of $11,100, and took said stock knowing the same had not been paid up, and there is now due and unpaid on the said stock so held by the defendant the sum of $6,500. Wherefore, plaintiff sues the said defendant as a former stockholder in said Wautauga Mining Company for the sum of $27 and for...