Sherman & Sons Co. v. Bitting , 26 Ga. App. 299 ( 1921 )

Jenkins, P. J.

(After stating the foregoing facts.) While the precise question here involved has never come before either of the appellate courts of this State, and there is great variance in the authorities from other jurisdictions, the unmistakable trend of our decisions, especially in the leading cases cited in the 2d division of the syllabus, is to hold remedial a statute such as is now before ns. Applying the test gathered from the authorities cited in these cases, as to whether the intent of the legislature of Arkansas was to afford reasonable compensation to an individual or class of individuals for a possible loss having a causal connection with the failure of the president of the corporation to file in the office of the county clerk a statement of its financial condition, we think that the provisions of the statute here sought to be enforced are primarily remedial rather than penal. The compensation is afforded not to the State, or to informers, or to the public. It is narrowed not only to the creditors of the corporation in general, but to its creditors whose debts were contracted during the period covered by the infraction. Not only this, but the compensation sued for is not arbitrary, but represents the exact loss of the creditor suing, to wit, his debt.

Nor, as we see it, can it be said that the dereliction of the corporate officer has no causal relation to the loss by the creditor. The financial statement required to be filed with the county clerk was in effect a public Bradstreet or Dun report gratuitously provided by law for the protection of creditors in their dealings with the corporation. And while it might be urged that the failure to file the statement could not have misled creditors, yet credit may have been actually extended on the faith of the individual liability of the delinquent officials, in the absence of its filing; and under this view, the civil provisions of the statute may be regarded as quasi ex contractu, since the provisions imposing individual liability, are to be read into all contracts extending credit and making sales between the corporation and its creditors.

Judgment reversed.

Stephens and Hill, JJ., concur.