Wagner v. Eisenmenger

• Decision Date: 05 December 1933
• Docket Number: No. 22742.,22742.
• Citation: 65 S.W.2d 108
• Parties: WAGNER v. EISENMENGER et al.
• Court: Missouri Court of Appeals

65 S.W.2d 108

WAGNER v. EISENMENGER et al.

No. 22742.

St. Louis Court of Appeals. Missouri.

December 5, 1933.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be published in State Reports."

Suit by Clyde W. Wagner, as trustee in bankruptcy of the estate of the Anchor Candy Company, against Hugo Eisenmenger and others. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

Malcolm I, Frank, of St. Louis, for appellant.

BENNICK, Commissioner.

This is a suit in equity, asking for an accounting against defendants, the seven stockholders and original incorporators of the Anchor Candy Company, a bankrupt, and requesting the court to ascertain the amounts due the corporation from the various defendants upon unpaid stock subscriptions, by reason of the fact that property was put into the corporation at an alleged excess valuation. The appeal is by plaintiff, the trustee in bankruptcy, from a judgment which was entered for defendants upon plaintiff's refusal to plead further following the sustaining of demurrers to the petition which were interposed by three of the defendants.

It appears from the petition that the Anchor Candy Company was incorporated under the laws of Missouri on September 3, 1930; that the authorized capital stock was $20,000, divided into one hundred shares of common stock of the par value of $100 each, and a like number of shares of preferred stock at a like par value; and that in the articles of incorporation it was set forth and represented that the entire capital stock of the corporation had been bona fide subscribed and paid up by $5,000 in cash and property of the value of $15,000.

It was then alleged that the sum of $15,000 was far in excess of the actual value of said property, the actual cash value of which was only $4,850, as evidenced by the opening entries in the books of the corporation; and that the subscribers to the capital stock of the corporation had actually paid in only $3,500 in cash upon their subscriptions.

The petition then set out the number of shares of both common and preferred stock subscribed for by each defendant; the amount, if any, paid in by each defendant in cash and in property; and the amount alleged to be due from each defendant. Suffice it to say that under the averments of the petition the aggregate amount due from all the defendants was the sum of $11,650.

It was then alleged that the claims filed and allowed against the estate in bankruptcy amounted to $7,826.90; that the assets in the hands of plaintiff, as trustee, amounted to $2,674.13; and that there would be required an approximate sum of $5,623.86 to pay the creditors in full and take care of the costs of the administration of the bankrupt estate.

Then followed the allegation that, by reason of the original subscriptions to the stock of the corporation and the issuance to the respective defendants of stock certificates in pursuance thereto, the defendants became liable to pay into the treasury of the corporation the several amounts which were due the corporation from them respectively.

The prayer was that, in order that a multiplicity of suits might be avoided, an accounting should be taken of the amounts due the creditors of the bankrupt, of all the costs and expenses of the administration, of the amounts due from the several defendants, and of the amounts paid in cash and in property on account of their several subscriptions and the issuance of the stock certificates to them respectively; that judgment should be entered against each of the defendants for such an amount as might be found to be due respectively; and for such general relief as might be just and proper.

We have made no reference to the averments of the petition respecting the adjudication of the corporation as a bankrupt, the appointment of plaintiff as trustee, and the entry of the order of the referee directing plaintiff to bring this proceeding; and it is enough merely to note that all such allegations appeared in proper form.

The petition was demurred to upon the grounds that it did not state facts sufficient to constitute a cause of action against defendants; that it showed upon its face that there was a misjoinder of parties defendant as well as a misjoinder of causes of action...