Weber v. Fickey

• Decision Date: 17 July 1879
• Citation: 52 Md. 500
• Parties: CHARLES WEBER v. FREDERICK FICKEY, JR.
• Court: Maryland Court of Appeals

52 Md. 500

CHARLES WEBER v. FREDERICK FICKEY, JR.

Court of Appeals of Maryland

July 17, 1879

Appeal from the Superior Court of Baltimore City.

The case is stated in the opinion of the court.

First Exception.--Stated in the opinion of the court.

Second Exception.--Stated in the court's opinion, except that the rule of the Superior Court on which the decision of this exception is based, is not there stated. Said rule is as follows:

14. "If the declaration shall not disclose the particulars of the plaintiff's demand, the defendant at any time before the cause shall have been entered on the trial docket or afterwards with leave of court, may enter on the docket a demand of particulars of the claim or demand; and if such demand be made before plea pleaded, the rule to plead shall be enlarged to fifteen days after filing of the bill of particulars and service of a copy thereof on the defendant."

Third fourth, fifth, sixth, seventh and eighth exceptions sufficiently stated in the opinion of the court.

Ninth Exception.--At the trial the plaintiff offered the following prayers:

1. If the jury shall find from the evidence in the case, that the Baltimore County Marble Company was incorporated under the General Laws of the State, as offered in evidence, on or about the 11th of November, 1870, and that a few days thereafter, a general meeting of the incorporators and stockholders was called and assembled, for the purpose of organizing said corporation, and considering the propriety of receiving the subscription of a certain Charles T. Holloway to the stock of said corporation, in property suitable and necessary to the business and objects of said corporation and that said corporators and stockholders then and there organized said company, and agreed with said Holloway to accept from him all his interest in certain stone quarries mines and property owned by him, and situated in Baltimore County; said corporation to pay all encumbrances thereon, held by a certain Denmead and Son, and in addition thereto, to transfer to said Holloway, 440 shares of full paid up stock of said Baltimore County Marble Company; and they shall further find that the said 440 shares of stock were issued and delivered to said Holloway or to Anne H. Holloway, his wife, with his consent and approbation, and that the said corporation under said agreement took immediate possession of said mines, quarries and property, and continued to use and occupy the same in mining and quarrying stone, and in carrying on the business of said corporation for over a period of one year, and during the entire period of the active existence of said corporation, then the holder of the said 440 shares of the capital stock of said corporation, or any part thereof, was not and is not liable for any of the debts, contracts or obligations of said corporation as an unpaid up stockholder.

2. If the jury shall find the facts set out in the aforegoing prayer, and shall further find that ten shares of said stock were, on or about the 30th of January, 1871, transferred and issued to Frederick Fickey, Jr., the plaintiff in this case, and is the only stock held by said Fickey in said company, then the said Fickey was and is in no way responsible thereby to any of the creditors of said corporation, for any of the debts or contracts of said corporation created during the time he was such holder.

3. If the jury shall find the facts set out in the two preceding prayers, and shall further find that the Baltimore County Marble Company became and is indebted to the plaintiff in the amount sued for in this case, or in such part thereof as they may find, and at the time of the creation of the said indebtedness, the defendant was a stockholder in said corporation of fifty shares of stock, upon which the whole par value has not been paid, then the said defendant is liable to the plaintiff to the amount of such unpaid subscription, less whatever sum the jury may find has been paid by Weber in the suit of Hurtt v. Weber, in the Circuit Court for Howard County; provided the amount so found to be due on account of defendant's unpaid subscription shall not exceed the sum which the jury may find is due from the said company to the plaintiff.

4. If the jury shall find that some time in October or November, 1871, certain stock of the Baltimore County Marble Company was transferred by Fickey to Green, and shall further find that the same was held by Fickey (all except ten shares) as collateral security for money loaned by him to a certain John Robinson, then the said Fickey was under no liability to the creditors of said corporation at any time during the holding of said stock, growing out of the fact that the full parvalue of the same had not been paid up.

The defendant objected to the granting of the plaintiff's first prayer, because there was "no evidence that said company agreed with said Holloway to accept from him all his interest in certain stone quarries, mines and property owned by him, and situated in Baltimore County, said corporation to pay all encumbrances thereon held by Denmead & Son;" and because "it submitted to the jury the question of law, if the company be duly incorporated."

The defendant offered the following prayers:

1. That the transcript of the record of the judgment offered in evidence is variant from the judgment averred in the declaration in this, that the judgment offered in evidence purports to be in favor of one Frederick Fickey, Jr., whereas the judgment averred in the declaration purports to be in favor of Frederick Fickey, and therefore the plaintiff cannot recover.

2. That the plea of nul tiel record must be found by the court in favor of the defendant, because of the variance mentioned in the first prayer.

3. That the plaintiff, to maintain his action at law, must show himself exempt from suit by creditors of the corporation, and that the evidence offered in this cause tending to show that he was the holder of stock paid by land and other property, is not legally sufficient in an action by a creditor, to exempt the plaintiff from liability for the debts of the corporation at the suit of a creditor of the corporation.

4. That to entitle the plaintiff to recover in this form of action, the burden rests upon him to show that the stock is fully paid up, and there is no averment in the declaration to support the proof offered tending to show that the plaintiff held the stock as assignee of Holloway, and that said stock was fully paid up by land or other property, and unless the jury find from all the evidence that Fickey paid up his stock their verdict must be in favor of the defendant.

5. That the jury are not at liberty to consider the evidence, tending to prove that Holloway purchased by a written agreement the right to quarry marble for several years, by a payment of royalty upon a certain farm in Baltimore County; that subsequently one Denmead took a mortgage of said right to quarry marble, and to secure the value of certain improvements made by himself, of about $8000, from said Holloway & Denison; that said mortgage was foreclosed in default of payment, that said Holloway became the purchaser at the mortgage sale, that subsequently the Baltimore County Marble Company of Baltimore County became substituted as purchaser instead and place of said Holloway; that the company then executed a mortgage to pay the balance of the purchase money, and although the jury may find that at a certain meeting of the managers and directors of the company, it was agreed that 440 shares should be given to the said Holloway as paid up stock; that this is not evidence sufficient to authorize them to find that the said 440 shares alleged to have been given to Holloway, was paid up stock; that the said alleged agreement between the said directors and managers, and the said Holloway, to give unto said Holloway $44,000 in capital stock, was void as against creditors, without authority of law, and no legal proof of compliance with the provisions of the statute, requiring stock to be fully paid up, so as to exempt the holder of such stock from personal liability; and if they further find that the 10 shares alleged to have been issued to the plaintiff, were a portion of said 440 shares of said Holloway's stock, and that the plaintiff has made no other payment upon said 10 shares, then there is no sufficient proof that the plaintiff has fully paid up his stock, and their verdict must be in favor of the defendant.

7. If the jury shall believe the testimony of the witness Green, that the plaintiff sold him 140 shares of stock; and if they also find, that but 100 of said shares was hypothecated to said Fickey by Robinson, then in the absence of any evidence tending to show that the remaining 40 shares had not been paid for in full their verdict must be in favor of the defendant.

8. That the court exclude from the consideration of the jury the following testimony of Fickey, admitted subject to exception: "Mr. Holloway proposed to assign his claim on the property, in consideration of the issue of 440 shares of paid up stock; a meeting was held to consider this proposition; it was accepted; Holloway was to assign to the company all his interest in the quarries and other property in Baltimore County;" the stock of Holloway was full paid up stock.

9. That the interest purporting to be conveyed by the mortgage, which was foreclosed, was a leasehold interest and not land, as required by the organic Act, and the other interest merely chattels; that such an interest could not gratify the requirements of the statute permitting land and other property to be taken in payment of stock.

10. That if the jury find from the evidence, that the plaintiff stated to the defendant, that he was the...