Kennedy v. Brooke ( 1933 )

ON MOTION ROE A REHEARING.

Bell, J.

The statement in the above decision that the corporation succeeded “to the position of holder and payee of the subscription” is criticised upon the ground that the record failed to show any transfer or assignment of the contract to the corporation. This court did not assume the existence of any such transfer or assignment, but in the language referred to was speaking simply of equitable ownership by the corporation. We also made the following statement, the correctness of which is brought into question in the motion for a rehearing: “Whether or not the receiver here had at least the burden of proving the existence of debts to which a recovery should be applied within the purview of the contract, . . this fact affirmatively appeared from the auditor’s report.” It is not questioned that the auditor’s report showed the existence of debts by the corporation; but it is contended that the record is silent as to the purpose for which these debts were incurred, and that this court was in error in stating in effect that the auditor’s report showed that such debts were incurred in promoting and organizing the corporation. It is also insisted that in view of the language of the contract the receiver should not recover without proving that these debts were incurred for the purposes named, In. our present view of the ease, we may assume, without deciding, that the record fails to show the purpose for which the debts were created, and also that as an abstract proposition counsel for movants are correct in their contention as to the burden of proof. If the court went astray upon these propositions, the movants were not hurt, and the conclusion reached should not be changed. The contentions now made were not presented by the record, and the chief mistake which' this court made was in dealing with a question foreign to the controversy. The defendants in error excepted to the auditor’s report upon various grounds, all of which were overruled except those referred to in the decree wbicb is quoted in the foregoing decision. The receiver sued out a bill of exceptions to this court, and no cross-bill was filed by the present movants. The record shows that there was some question as to the necessity of proving the existence of debts and the times when the debts were created, but there was no point as to whether the receiver should prove that such debts were incurred in promoting and organizing the corporation.

The grounds of the motion for a rehearing are not such as to require a different judgment, although the opinion originally filed should be and is qualified as indicated herein.

Rehearing denied.

All the Justices concur.