Barron v. Burrill , 86 Me. 72 ( 1893 )

Haskell, J.

Creditor’s bill against the shareholder of a corporation for unpaid stock.

I. Plaintiff avers a judgment in her favor against the corporation, recovered January 30, 1890, and execution thereon wholly unsatisfied. Defendant’s answer does not deny the fact.

II. Plaintiff avers the legal existence of the corporation. Defendant admits the organization of the corporation, but not its legality. Neither does he deny it.

III. Plaintiff avers that defendant took one hundred shares of stock June 4, 1887, and has not paid for the same, "either in cash or in any other matter or thing at a bona fide or fair valuation thereof, or made payment in any manner required by law.” He does not aver what the par value of the shares was to be. Defendant denies the taking or ownership of the same.

IY. Plaintiff avers that the cause of action in her said judgment accrued while the defendant was the owner of said stock, and that her action was commenced during such ownership or within one year thereafter. Defendant denies all this.

The first issue of fact is whether defendant subscribed, within the meaning of II. S., c. 46, § 47, for one hundred shares of stock in the corporation. It appears from the receipt for the same, dated June 4, 1887, admitted to have been signed by defendant, in the form " J. E. Parsons by C. C. Burrill,” that he did take the same, and that Parsons neither authorized nor knew of the transaction. It was defendant’s own transaction, although the shares were issued in the name of Parsons. He, not having authority from Parsons to take the shares for him, must be considered as the real taker and owner of them. An actual taking of shares is equivalent to a subscription for an agreement to take. Either conies within the meaning of the statute. McAvity v. Lincoln P. & P. Co., 82 Maine, 504.

The receipt of defendant places the shares at three dollars and fifty cents each. He does not pretend that he ever paid that amount for them, or that it ever has been paid by anybody. He, therefore, became liable for par value of the same to the corporation as assets, and by force of the statute to its judgment creditors. The amount of his liability is five hundred dollars with interest from the filing of the bill. He fails to show any debt of his own against the corporation that may be applied to the payment for his stock.

The second issue of fact is, whether plaintiff’s debt was contracted during defendant’s ownership of the stock, and whether suit was brought meantime or within one year after its transfer on.the books of the corporation. No transfer of the shares appears to have been made, and his ownership of the same may be presumed to continue. Grindle v. Stone, 78 Maine, 176. The debt arose from a mortgage given by plaintiff September 7, 1885, to a bank, that the corporation, on purchase of the land from the plaintiff, June 14, 1887, assumed and agreed to pay, as a part of the purchase money. There is much force in the suggestion that it is secured by the mortgage and therefore is a mortgage debt of the corporation; but that is res judicata. Such debt is held not to be a mortgage debt of the corporation. Barron v. Paine, 83 Maine, 312.

One of the plaintiffs died after this bill was filed and before the trial below. As to him the bill abated, and is prosecuted by the survivor, the sole party interested in the judgment sought to be enforced.

Bill sustained with costs.