Ball Electric Light Co. v. Child , 68 Conn. 522 ( 1897 )

Andrews, C. J.

This action is brought on § 3951^* of the General Statutes as amended by Chap. 140 of the Public Acts of 1893, against the defendant who is a stockholder in the Killingly Electric Light Company. That corporation was organized under the laws of this State for the purpose, among other things, of manufacturing and selling electricity for light and power in the town of Killingly. The complaint alleges that the Killingly Company was indebted to the plaintiff ; that a suit had been brought by the plaintiff against the said company, a judgment recovered, and execution issued thereon, which had been returned unsatisfied.

The section of the statute referred to above makes the stockholders in the classes of corporations therein named, of which the said Killingly Company is one, liable to the creditors of the corporation as guarantors. They are to be liable for the debts of the corporation, to the'extent of twenty-five per cent of the amount of stock held by them, but only after every effort to collect the debt from the corporation has proved unavailing. “ A guaranty is a collateral undertaking to pay a debt or perform a duty, in case of the failure of another person, who is in the first instance liable to such payment or performance.” 9 Amer. & Eng. Ency. of Law, 67; DeColyer on Guaranties, 1; Anderson’s Law Dict.; Redfield v. Haight, 27 Conn. 31, 37. “ The creditor does not give credit to the stockholders, as such. They may be hourly changing. They, in no sense of the word, are debtors. Like the inhabitants of towns, they may be compelled to pay, while they remain members, not as debtors, but as guarantees. The corporation is the real debtor; and the members, while such, its surety.” Middletown Bank v. Magill, 5 Conn. 28, 70; Deming v. Bull, 10 id. 409; Paine v. Stewart, 33 id. 516.

A general law declaring that the stockholders of a corporation shall be individually liable to its creditors, is a legislative enactment that any person who shall become a stockholder in the corporation, or, in other words, enter into the contract of membership, shall at the same time assume an individual liability to the creditors of the company. The function of the legislature in creating this liability, is to declare the legal effect of the voluntary acts of the parties, and to enable them to carry out their purposes in a manner which would not have been authorized at common law. When a person becomes a shareholder in a corporation, he agrees with all the other shareholders to enter with them, upon the terms provided by the general law or the company’s charter; he also undertakes to become liable to any person who shall give credit to the corporation, to the extent of the shares which he owns. 2 Morawetz on Corporations, § 870.

The defendant urges three grounds why judgment against him is erroneous: (1) that he was not a shareholder in the Killingly Electric Light Company; (2) that the debt which the Killingly Company owed the plaintiff was incurred before he became a stockholder; and (3) that he was denied a set-off of a debt which he says the Killingly Company owed him.

The statute evidently inteuds to make the obligation of guaranty attend the shares of stock at all times until the debts are paid, into whosesoever hands the shares may come. The owner of the stock is made at all times a guarantor, to the extent named in the statute, of all the debts of the corporation contracted by or due from it, so long as he remains a stockholder and until the corporation is dissolved ; or, as the statute has been since 1893, for two years after he ceases to be a stockholder. And of course it must be the stockholder of record. The defendant was the stockholder of record; and the fact that he held the stock as collateral would not, as between himself and the pei’son of whom he took it, remove the statutory liability.

A guarantor when sued on his contract cannot set off a debt owed to him by his principal. To allow that might deprive the party guarantied of the whole value of the guaranty.

There is no error.

In this opinion the other judges concurred.

* Section 3951 of the General Statutes reads as follows:

“The stockholders of every telegraph, telephone, or electric light or power company, organized under the laws of this State, shall be jointly and severally liable for the payment of all its debts contracted or due during the time of their holding stock therein, to the extent of twenty-five per cent, of the amount of stock held by them respectively, if a judgment theron shall have been obtained by the claimant against the company, and an execution thereon shall have been returned unsatisfied, or if such company shall be dissolved.”

Chap. 140 of the Public Acts of 1S93, provides:

“Section 3951 of the General Statutes is hereby amended to read as follows: The stockholders of every telegraph, telephone, or electric light or power company, organized under the laws of this State, shall be jointly and severally liable for the payment of all debts contracted or due during the time of their holding stock therein, to the extent of twenty-five per centum of the amount of stock held by them respectively, if a judgment thereon shall have been obtained by the claimant against the company, and an execution thereon shall have been returned unsatisfied, and suit shall have been brought against any such stockholder or stockholders, while they respectively continue to hold any of said stock, or within two years thereafter.”