Grindle v. Stone , 78 Me. 176 ( 1886 )

Viugin, J.

The plaintiff having, in April, 1883, recovered judgment, on an account annexed, for eight hundred dollars and eighty-six cents, debt and seventeen dollars and eighty-seven cents costs against the Granger Copper Mining Company, and satisfied in part his execution by a levy upon the personal property of the company, seeks by this action a judgment for the balance thereof against the defendant to whom, it is alleged, the company issued thirteen thousand three hundred thirty-two and one-third shares of its stock which he has not paid for in accordance with E. S., c. 46, § 45.

The action being founded on E. S., c. 46, § § 46 and 47, the plaintiff must by evidence bring his case within those provisions by showing:

1. That he has a lawful and bona fide judgment against the • corporation " based upon. a claim in tort or contract, or for any penalty,” recovered within two years next prior to the commencement of this action;

2. That the defendant subscribed for or agreed to take stock in the corporation and has not paid for the same as payment is defined in § 45.

3. That the cause of action upon which his judgment against the corporation was founded, was contracted during the defendant’s ownership of such unpaid stock; and

4. That his proceedings to obtain his judgment against the corporation were commenced during the defendant’s ownership of such unpaid stock, or within one year after its transfer was recorded on the corporation books.

With proof of such facts the action may be maintained " without demand or other previous formalities,” § 47.

What is the proof ?

1. Copies of the writ and record show a judgment in favor of the plaintiff against the corporation recorded at the April term, 1883, on an account annexed; and this action commenced by writ dated July 30, 1883.

2. The certificate of organization shows that the defendant took thirteen thousand three hundred thirty-two and one-third shares of the capital stock each of the par value of five dollars; and that of the whole one hundred thousand shares issued, the stockholders paid in one thousand dollars cash and ten thousand dollavs in land — leaving the remainder unpaid for. This makes a prima facie case of unpaid stock in the absence of any evidence to the contrary. 2 Whart. Ev. § 1284. If the defendant had paid for his, he could have shown it as a defence, and it would have been a full defence, § 48.

3. The account annexed upon which the judgment against the corporation was based, as shown by copy of the writ in that action, accrued between December 9, 1880, and November 14, 1881, or during the defendant’s ownership of unpaid stock ; and

4. Copies of the writ and record show that the proceedings ■ to obtain the plaintiff’s judgment against the corporation, were' commenced during the defendant’s ownership of such unpaid! stock, his ownership shown by the certificate of organization, being presumed to continue until the contrary is shown.

All that is required by the plaintiff to lay the foundation for • this action, is a seasonable recovery of the kind of judgment mentioned in § 46. It was not necessary for him to take out am execution on that judgment and take any action thereon as in. case of a debt created before 1871. And the fact that ho did so and caused a seizure and sale thereon of the personal property of the corporation in part satisfaction thereof, cannot prejudice' the plaintiff. That was for the benefit of the defendant. The officer returned the execution satisfied in part, viz: for forty dollars and five cents. If anything more has been paid thereon, the defendant being, as the certificate of organization shows, president of the corporation, will bo able to show it at the next trial.

That the defendant is the same Henry N. Stone who signed the certificate of organization, is prima facie shown by the identity of the name, in the absence of any evidence of another person of that name in Boston where he is alleged to reside. 3. Phil. Ev. (Cow. Ed.) 1301-2. Laws, Pres. Ev. 248.

Exceptions sustained.

Petees, C. J., Daneorth, Postee and Haskell, JJ.,. concurred. E:\iery , J., having been of counsel did not sit.