Farmers Bank v. Gallaher , 43 Mo. App. 482 ( 1891 )

Gill, J.

“If any company formed under this chapter dissolve, leaving debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the company in such suit,” etc. R. S. 1879, sec. 745. This statute is intended to authorize such, actions as the one here prosecuted by this plaintiff, and this suit is clearly brought; under this statute. It is not a suit in equity, but an action at law authorized by the terms of an act of the legislature. McGinnis v. Barnes, 23 Mo. App. 413; Chouteau v. Dean, 7 Mo. App. 210.

There is, too, no substantial objection to the petition. The allegations of fraud, it may be,'are unnecessary, yet such statements in the petition do not destroy the material portions, nor convert this action at law into a suit in equity. These allegations may be rejected, and yet sufficient remains to constitute a good cause o.f action against the defendant. Clark v. Edgar, 84 Mo. 106. Plaintiff’s petition contains every material allegation required to fasten on defendant a legal obligation to pay the plaintiff’s claim. To hold defendant liable it is only necessary to allege and prove, first, that plaintiff is an unsatisfied creditor of the defunct corporation, the said Terra Cotta Company, and, second, that defendant at the dissolution of the said corporation was the holder of stock therein not fully paid up. These propositions established, it follows therefrom that plaintiff should recover to the extent of such unpaid stock, limited by the amount of his claim against the dissolved corporation. These allegations appear on the face of the petition, and the record abounds with testimony in support thereof. The unpaid stock subscriptions belonged to the creditors of the dissolved corporation to the extent of their claims against it; and this plaintiff, as one of such creditors, had the legal right to subject the same, ora sufficient amount thereof, to the payment of his judgment. Gill v. Balis, 72 Mo. 424, and cases cited.

It is contended by defendant’s counsel that a dissolution of the corporation, the said Terra Cotta Company, must be shown before -a creditor can sue a stockholder with stock unpaid. This is correct, but it is well established that a dissolution will be presumed in favor of the creditors, when it is shown that the corporation has practically surrendered its corporate rights, has ceased to do’ business and has transferred all of its assets. Instruction, numbered 3, given by the court on plaintiff ’s motion is a clear declaration of the law as applied to this case. Kehlor v. Lademan, 11 Mo. App. 550, 553.

We have considered in detail the several different points raised in defendant’s brief, and have here given our views on such as deserve notice in an opinion. We conclude, from a review of the entire record, that the cause was fairly tried and submitted on instructions clearly declaring the law of the case, and that the judgment should be affirmed.

All concur