Kroenert v. Johnston

Dunbar, J.

(dissenting). — I dissent, for the reason in the first place that the decision in this case is directly opposed to the decision rendered by this court in the case of Adamant Mfg. Co. v. Wallace, 16 Wash. 614 (48 Pac. 415). It is stated in the opinion in this case that there was perhaps something said which, considered alone, might seem in conflict with the opinion expressed by the majority, but that the ease was disposed of on the ground that the ci editors there knew that the stock subscriptions had been paid for in property of less value than the face value of the shares. There was not only something said in that case which was opposed to the rule laid down in this case, but it was specially decided, and the rule was announced clearly and emphatically, that the stock subscribed must be paid for in money or money’s worth, and the opinion stated, after reviewing the facts and the law:

“This case, then, falls squarely within the rule which we have announced above, and, if there were no estoppels, the creditor would undoubtedly have the right to pursue this trust fund into the hands of the stockholders.”

It is true that the creditors were held estopped from asserting that they had been misled by the action of the corporation, but there would have been no necessity for the court to have invoked the doctrine of estoppel, if in any event the stockholders were not responsible to them for turning in their property at an overvaluation. If the majority of the court desires to recede from the law expressed in that case, it should be done by squarely overruling that decision so that the lower courts and the attorneys of the state will have some way of ascertaining what the law is on this question. As it is, a reading of the opinion referred to and of the majority opinion in this case will serve to confuse instead of to enlighten.

But, on principle, I am opposed to the doctrine announced in this case, regardless of any former decisions. There is no reason in law or morals why a corporation should not be compelled to act squarely and fairly with the world. Practically, it is impossible for the ordinary person dealing with a corporation to make such an examination as is referred to by the majority in this case, and he is helpless if he cannot rely upon the announcement of the corporation that its capital stock is of a certain actual value. The idea that he can protect himself by an examination of the books and property of the corporation is beautiful in theory, but desperate in practice. The doctrine that the liability of the shareholders to contribute the amount of their shares as capital is treated in equity as assets, is so well established that it would be almost revolutionary at this time to overturn it. Indeed, the majority opinion acknowledges the trust fund theory, but the great difficulty under this decision will be to find the fund that is acknowledged.

Assuming that the findings of the court are correct, the judgment should be affirmed.