Wheeler v. Thayer

• Decision Date: 08 November 1889
• Docket Number: 13,964
• Citation: 22 N.E. 972,121 Ind. 64
• Parties: Wheeler v. Thayer et al
• Court: Indiana Supreme Court

22 N.E. 972

121 Ind. 64

Wheeler v. Thayer et al

No. 13,964

Supreme Court of Indiana

November 8, 1889

From the Marshall Circuit Court.

Judgment affirmed, with costs.

S Parker, for appellant.

H Corbin, W. B. Hess and L. M. Lauer, for appellees.

OPINION

Berkshire, J.

This action rests upon the construction to be given to the following section, 3869, R. S. 1881: "The stockholders and members of manufacturing and mining corporations shall only be liable for the amount of the stock subscribed by them respectively; and privileges or immunities which have been heretofore granted to such corporations shall, upon the same terms, equally belong to all citizens who may desire to incorporate themselves for the same purpose: Provided, That such stockholders shall be individually liable for all debts, due and owing laborers, servants, apprentices, and employees for services rendered such corporation."

The complaint, in substance, alleges that on the 28th day of November, 1881, there was organized under and according to the general laws of the State of Indiana, at the city of Plymouth, in the State of Indiana, a private corporation known as the "Adams Chilled Plow Company," the business of which was to manufacture plows and machinery, and to do general foundry work; that on the 11th day of November 1882, said corporation, through its then president and secretary after due and proper authorization from its then board of directors, borrowed from the plaintiff six thousand dollars, which was to be used, as he was informed by its said president and secretary, in the business of the corporation, and was so used, and for which it executed to him a note due in three years from date, with interest at eight per cent. per annum, and to secure the said note executed at the same time a mortgage on all of its real estate, machinery and material on hand; that afterwards, and on the 21st day of February, 1885, the said corporation transferred all of its property to a trustee, except certain subscriptions to stock which were unpaid; that said trustee was to dispose of the said property so transferred and apply the same to the payment of the indebtedness of the said corporation, except the debt due to the appellant; that said trustee sold the said trust property to one William J. Adams for the sum of $ 2,450 which was applied to the payment of the indebtedness against said corporation, and with which all of the debts and claims of said corporation were paid, except that of the appellant, and leaving the appellant then and now its only creditor; that at that time the said corporation became wholly insolvent and has so continued; that at no time since said sale has said corporation carried on any business; that it has not acquired any means or property with which to perform or carry on any business; that no directors or officers to manage its affairs have been chosen since the date of said sale; that the directors and officers theretofore elected, and then acting, have not performed any of the acts or duties devolving upon them since April 25th, 1885, at which time a meeting of the board of directors was held and a committee was appointed to ascertain a method to work a dissolution of said corporation; that no report of the condition of said company has been made since said date or published; that on the 28th day of January, 1887, the appellant obtained a judgment against said William J. Adams, the purchaser of the property mortgaged, (who, in his purchase, assumed the payment of said indebtedness, due to the appellant) for the sum of $ 5,202 and a decree foreclosing said mortgage; that upon said judgment and decree an order of sale issued March 7th, 1887, and the mortgaged property was sold thereon for the sum of $ 840, and that is all that the appellant has realized or can realize on his said debt against said corporation, the said Adams being wholly and notoriously insolvent; that at the time the appellant's said note was given and the money borrowed of him as stated, the appellees were the owners of stock in said corporation, or had become entitled to receive stock and liable to pay for the same, and subject to the liability of stockholders by signing the original subscription list and meeting with the other persons who were stockholders, as...