Citizens & Miners Savings Bank & Trust Co. v. Gillespie , 19 W.N.C. 257 ( 1887 )

Mr. Justice Paxson

delivered the opinion of the court March 21st, 1887.

While the assignments of error in this case are numerous, the questions involved are but few, and those easily disposed of; and we may remark at the outset that we need not discuss the question whether the defendant, as the transferee of stock, was liable for the unpaid subscription, for the reason that, in point of fact, he assumed the liability of an original shareholder by his subscription or agreement of April 12th, 1873. This established a direct contractual relation between the defendant and the company upon' which he is as liable to a suit as if he had been an original subscriber. This is the fair, legal construction of that paper.

This suit was brought by the assignees of the bank to collect the whole of the unpaid subscription. There was no proof of any assessment. The plaintiff offered to prove an assessment or order of Judge Handley, made at chambers during vacation, authorizing the assignees to collect the whole of the unpaid subscriptions. See 12th assignment. We have no doubt of the power of a judge at chambers to make such an order. It is an exercise of chancery power, and the chan.eery side of the court is always open. While this order, standing alone, would be competent evidence, it was not error to reject it as a whole. It was accompanied by an offer to prove a petition and citation which were not pertinent to the issue trying. It is always well to remember that, in making offers of evidence, the court has a right to regard the offer as a whole. The judge is not bound, when it contains several subjects, to treat it piecemeal, and admit one part and reject the residue. He may do so, but we will not reverse for his refusal. This is settled by numerous decisions, which we need not specify.

There being no assessment in evidence, the learned judge left it to the jury to find whether the whole of the unpaid subscription was required to pay the debts of the company. We see no error in this. If all the unpaid subscriptions were required to pay the creditors, no assessment was necessary-under the authority of Yeager v. Scranton Trust Co., 14 W. N. C., 296. It is well to observe that the syllabus of that case, as reported, is not correct. It is much broader than the point decided, which was, that, when it is shown that the whole subscription is required to pay the creditors, an assessment is not essential. It was said, in the opinion of this court, that: “The uncontradicted evidence shows that it was necessary to collect the whole of this stock subscription in order to pay the sums due to the depositors of this insolvent corporation.” There is not even an apparent conflict between the case referred to and the later eases of Lane’s Appeal, 105 Penna., 49, and Bell’s Appeal, 44 Leg. Int., 27. These were creditors’ bills, filed against insolvent corporations, to compel the payment b.y the stockholders of their unpaid subscriptions, and it was held that, in such cases, there must be an account taken of tbe amount of debts, assets and unpaid capital, and a decree for an assessment of the amount due by each stockholder. The reason of this is plain. Upon the insolvency of a corporation a stockholder is liable for only so much of his unpaid subscription as may be required to pay the creditors. Hence he may not be called upon in an arbitrary way to pay any sum that an assignee or creditor may demand. It is therefore requisite to ascertain, in an orderly manner, the extent of a stockholder’s liability before proceedings are commenced to enforce it. But the necessity for this does not exist when the whole amount is required to pay the.debts. Hence, in such cases, as was said in Yeager v. Scranton Bank, supra, an assessment is not essential. The assignee may sue at once,for all is required.

In the case before us the jury found that the whole of the unpaid stock was not required to satisfy the debts of the bank. As this finding may have been due iri part to the testimony referred to in the ninth assignment of error, it is proper that I should refer to it. The court below, against the objection of plaintiffs’ counsel, permitted the defendant’s counsel to interrogate Mr. Kennedy, the witness on the stand, as to the financial responsibility of one Henry O. Silkman, the allegation being that Silkman was a stockholder to the amount of $20,000, and that if this subscription was good, the whole •amount of the unpaid stock would not be needed. There was no evidence that Silkman was a stockholder to the extent of over $5,000, hence it was clear error to admit evidence as to his ability to pay upon $20,000. It is true, the witness was not very clear upon the subject of Silkman’s responsibility; ,but it is not easy to measure the effect of- such evidence as this upon the jury, and because we cannot do so, and because its admission was error, we must reverse this judgment.

Judgment reversed, and a venire facias de novo .awarded.