Woman's Temperance Building Ass'n v. Devore , 160 Ill. App. 153 ( 1911 )

Mr. Justice Clark

delivered the opinion of the court.

This case seems to have been tried in part upon the theory that a demand must be made before a suit can be instituted upon a stock subscription, and it is insisted by the appellee that in order to entitle appellant to recover it must show that the call had been made upon the stockholders by the board of directors. In the case of Edwards v. Schillinger, 245 Ill. 231, the Supreme Court of this state held “the liability of a stockholder for unpaid subscriptions is several and not joint, and the creditor is not bound to settle up affairs of the corporation in order to obtain his dues. (Hatch v. Dana, 101 U. S. 205.)

“A creditor of a corporation seeking satisfaction of his debt, need look no further than to find a solvent stockholder, who is liable for it, and he sustains no relation to the corporation which requires him to adjust equities between stockholders or even the corporation and others (Ogilvie v. Knox Ins. Co., 22 How. 380).”

As we hold upon the foregoing authority that no call was necessary, especially as Mr. Devore had already paid part of the subscription, it is unnecessary for us to discuss the question of secondary evidence in reference to what was done by the hoard of directors with regard to a call upon the subscription for stock.

Another reason assigned by the appellee why the appellant should not recover is that the subscription of Mr. Devore to the stock was obtained by fraud. The only evidence in the record that we have been able to discover of this alleged fraud, is the statement made in the answer to the eighth interrogatory set forth in the foregoing statement, and it will be noticed that this is stated on information derived by the garnishee from a hill filed in the Circuit Court- of Cook county. If we accept this portion of the answer as evidence, notwithstanding the fact that it was on information and belief, still we find that the stockholders voted the 250 shares to Fell as remuneration for his services, and prior to the subscription made by Mr. Devore. Our opinion is that under the circumstances this defense in a suit brought by a creditor of the corporation, as is the one before us, is not available.

Inasmuch as the trial court should have instructed the jury to find a verdict for the plaintiff in the court below for the sum of $400, together with interest from the date of the subscription, we think a judgment should he entered in this court in favor of the appellant against the appellee under the authority of Commercial Ins. Co. v. Scammon, 123 Ill. 601.

The order will therefore be that the case he reversed and that judgment he rendered in this court upon the ■finfling in favor of the Woman’s Temperance Building Association against Anna Evans Devore, executrix of the last will and testament of John A. Devore, deceased, in the sum of $722.22, to he paid in due course of administration.

jReversed and judgment here.