Taussig v. Glenn

• Decision Date: 13 June 1892
• Docket Number: 72.,71
• Citation: 51 F. 409
• Parties: TAUSSIG et al. v. GLENN. GLENN v. TAUSSIG et al.
• Court: U.S. Court of Appeals — Eighth Circuit

51 F. 409

TAUSSIG et al. v. GLENN.

GLENN v. TAUSSIG et al.

Nos. 71, 72.

United States Court of Appeals, Eighth Circuit.

June 13, 1892

George W. Taussig, for plaintiffs in error, Taussig and others.

Thomas K. Skinker, for defendant in error, Glenn.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District judge.

SANBORN Circuit Judge.

These two cases are brought to this court upon writs of error to reverse the same judgment. The defendant in error, John Glenn, was the plaintiff below, and the other parties were defendants, and in this opinion will be so designated. The plaintiff John Glenn, as trustee of the National Express &amp Transportation Company, a corporation, brought suit in the court below against Charles Taussig and Morris Taussig to recover alleged unpaid subscriptions of the copartnership of Taussig, Livingston & Co., which was composed of Charles Taussig, Morris Taussig, and J. H. Livingston, to the capital stock of the corporation. After the commencement of the action Charles Taussig and Morris Taussig died, and John J Taussig and George W. Taussig, executors of Charles Taussig and Jane Taussig, executrix of Morris Taussig, were, before the trial below, substituted for their deceased testators. After stating the citizenship of the parties and the names of the members of the firm of Taussig Livingston & Co., the plaintiff made the following allegation in his amended petition:

'And for cause of action states that the defendants in their said firm name heretofore subscribed for one hundred shares of the capital stock of the National Express and Transportation Company, a body corporate of the state of Virginia, duly incorporated under the laws thereof pursuant to an act of the general assembly of said state approved December 12, 1865, entitled 'An act to amend and re-enact an act to incorporate the Southern Express Company, passed March 12, 1861, and to incorporate the National Express and Transportation Company;' and thereby agreed to be liable to said company, and undertook and promised to pay said company, for each and every share so subscribed for by said defendants, the sum of one hundred dollars, in such installments and at such times as said defendant might be lawfully called upon and required to pay the same, according to the legal tenor and effect of the laws under which said company was so incorporated and said subscriptions to said stock made by said defendant, whereby, and by force of said subscription, said defendants became and were received and admitted as a stockholder in said company, and undertook to sue and be sued, implead and be impleaded, contract and be contracted with, in said corporate name, as to all matters touching and affecting the property, rights, and obligations of said corporation.'

The defendants in their answer to this allegation of the petition averred:

'That no subscription to any capital stock of said company was made by Charles Taussig or Taussig, Livingston & Co., or by Morris Taussig, or by any one in their behalf, or with their consent, as alleged; that in 1865 Charles Taussig, Morris Taussig, and J. H. Livingston were partners in business as Taussig, Livingston & Co., at St. Louis, Mo.; that the sole purpose of said partnership was to buy and sell wool, hides, fur, and beeswax; that it was not part of the business of said firm to subscribe to the capital stock of said Transportation & Express Company in Virginia or elsewhere; that no subscription was ever made by such firm, as is alleged in the amended petition; that no such alleged subscription was within the purposes or scope of said partnership; and defendants deny that any partnership existed between Charles and Morris Taussig and J. H. Livingston, as alleged in said amended petition, for any of the purposes alleged in said petition.'

The action was tried before the judge without a jury, and, upon the trial of the issue made by the foregoing allegations of the pleadings, the plaintiff, after he had introduced in evidence, without objection, an unpaid draft in the following words and figures: 'Baltimore, August 10, 1866.

'Ten days after sight pay to the order of the Bank of Commerce five hundred dollars, value received, and charge to the account of assessment on capital stock.

J. V. H. Allen, Treasurer Nat. Ex. & T. Co.

'Taussig, Livingston & Co., St. Louis, Mo.

(Indorsed:) 'Taussig, Livingston & Co., 16 Sept., 1866: Pay Third Natl. Bank of St. Louis or order. C. H. CATHCART, Asst. Cash.,' -- offered in evidence a page of the stock ledger of the corporation, of which the following is a copy:

NOTE--Some parts of this form are wider than one screen. To view material that exceeds the width of this screen, use the right arrow key. To return to the original screen, use the left arrow key. TANSSING, LIVINGSTON & CO. ST. LOUIS. ------------------------------------------------------------------------------------------------------------------------------ To Whom Transfer Certif- Number Requisition From Whom Transfer Certif- Number Requisition Date. Transferr- No. icate of Drawn. Date. Transferred No. icate of Drawn ed. Shares. Shares. No. No. 1866. Apl. 13 Company. 775 100 1,000 July 5 500

To this the defendants duly objected, but the court admitted this evidence, and this ruling is assigned for error. There were other issues tried, and other assignments of error, but, in the view we take of this assignment, it is not necessary to notice them in arriving at a decision of this case, and they are considered and determined in Liggett v. Glenn, 51 F. 381, (decided at this term.) All the issues were found for the plaintiff by the court below, and judgment entered against the defendants for $10,489.36, to reverse which the defendants below sued out a writ of error in the case first above entitled.

The plaintiff prayed the court to declare the law to be that he was entitled to interest on the calls for the unpaid subscriptions which were made by decrees of competent courts in Virginia in an action against the corporation based on a creditors' bill, form the respective dates of such decrees; but the court held he was entitled to interest from the commencement of the pending suit only, and to reverse this ruling he sued out his...