Lewiston Co-operative Society, No. 1 v. Thorpe , 91 Me. 64 ( 1897 )

Stroht, J.

To justify arrest upon mesne process, on contract, the statute requires “ the creditor, his agent or attorney ” to make oath to a belief in the facts enumerated in the statute. The oath, in this case, was made by the president of the plaintiff corporation. It is objected that this was not a compliance with the statute. A corporation can only act by its' officers. If the creditor is a corporation, the oath must be that of some officer, or some other agent or attorney. The act of the president, in the business of the corporation, and within the scope of his authority, is the act of the corporation. For the purpose of the' creditor’s oath to authorize arrest, we regard the president, in taking the oath, as representing the corporation; and the oath so taken is to be regarded as the oath of the creditor corporation, within the meaning of the statute. The motion to dismiss is overruled.

Defendant was a stockholder in plaintiff corporation. Its bylaws provided that “ on and after six months from the date of organization of this society, shares may be withdrawn at their par value, on demand, or if the Board of Directors shall require, after thirty days’ notice has been given; provided that no share shall be withdrawn at the expense or to the detriment of the remaining shareholders.” The corporation was organized in 1883, for the purpose of buying and selling “ food, fuel, clothing and other necessaries of life, and to carry on the business of general dealers in merchandise.”

Defendant bought at plaintiff’s store goods to amount of $41.34, which is sued for in this action. He claims to set off the amount of shares held by him, being forty dollars. Thorpe asked to withdraw his shares about March, 1896. Writ was dated June 18, 1896. On April 13, 1896, the directors voted “to allow no more withdrawals for the present or until further action by the board.” In accordance with this vote, plaintiff refused to allow defendant to withdraw his shares.

The action of the directors was in line of their authority under the by-laws, and appears to have been warranted by the condition of the corporation. The defendant had stock in the corporation, an interest in the venture. The success or even continuance of the business might be endangered or ruined, if share holders, at pleasure, could withdraw the capital by them contributed to the enterprise. Plaintiffs were in no sense indebted to defendant. They had a right to require payment from defendant for goods purchased by him. His capital, represented by his shares, must take the chances of the business. If the corporation, in the honest judgment of the directors, could safely allow him to withdraw his capital, it could be done; but until then, he was one of the principals in the enterprise, to stand or fall with them. He must pay his indebtedness in aid of the business.

Judgment for plaintiff.