Vincent v. Sands — 11 Abb. Pr. 366

Majority

p. 366

VINCENT against SANDS.

New York Superior Court;

General Term, May, 1871.

Headnote

Liability of Trustees of a Corporation.

Whether a judgment recovered against a corporation is evidence of the indebtedness of the company in a subsequent action brought against a trustee, to charge him individually,—Query.

It is not necessary to prove a special authority on the part of a superintendent of a corporation organized under the manufacturing companies’ act of 1848, to employ assistance, to authorize a recovery for the services rendered in his assistance. Such authority is, it seems, a question for the jury.

The annual report required from a corporation organized under the act of 1848, must conform strictly to the statute, which is not directory merely. A report signed and verified by the secretary exclusively, is insufficient.

The recovery of a judgment against a stockholder of a corporation organized under that statute, is not a bar or a merger of the same claim against a trustee individually, caused by the failure of the company to file an annual report.^[1]

Appeal from a judgment.

This action was brought by Victor Vincent, a judgment creditor of the New York and. Galena Lead Mining Company, a corporation organized under the act of 1848, to charge the defendant, Alfred B. Sands, as a trustee of said company, with the payment of the debt, upon the ground that no annual report had been filed as required by law.

The claim of the plaintiff was fo.r services rendered to the company between March 1, 1865, and July 1, 1867, and the judgment recovered by him amounted to four thousand four hundred and twenty-seven dollars and eighty cents.

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The defendant, by his answer, substantially denied all the allegations of the complaint, but admitted that he was elected trustee of said company in the early part of July, 1866. He also averred payment and the recovery of a judgment by plaintiff against Bamford, a stockholder, for one thousand and twenty-six dollars and two cents, upon the same demand.

Upon the trial the plaintiff proved, among other things, his employment by the company through one Lestrade, the superintendent-of the company ; the services rendered by him, the terms on which he was employed, his account, as certified by the superintendent of the company, the recovery, on May 18, 1868, of judgment upon the merits after trial against the company, the judgment roll and execution and return nulla tona; also, the election of the defendant as trustee, on July 25, 1866, and his acceptance of the trust, at the time.

Also, that between February 11, 1865, and January 30, 1869, no annual report had been filed as required bylaw, except one on January 19, 1866, which was signed by three trustees, other than the defendant, and verified by the secretary, and another on January 14, 1867, which was signed and verified by the secretary alone.

After plaintiff had rested, the defendant moved for a dismissal of the complaint on the grounds: 1. That the plaintiff had shown no authority on the part of Mr. Lestrade to appoint him on behalf of the company. 2. That the defendant was not liable, a report having been filed with the county clerk and published during the time he was trustee, showing the. condition of the company. 3. That reports having been filed within twenty days after the first days of January, 1866 and 1867, though informal, were a sufficient compliance with the law, the statute being directory merely. 4. A trustee who has neglected to report, is personally liable only for

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those debts which were contracted while he was in office, and not for those contracted before a default has been made.

Motion denied. Exception.

The defendant attempted to prove that the services were not rendered to the company, but to Lestrade individually, and further showed that the plaintiff had already recovered a judgment for the same demand against Bamford, as a stockholder, to the amount of one thousand and twenty-six dollars and two cents.

At the close of the evidence on both sides, the defendant renewed his motion for a dismissal of the complaint for the reason assigned on the motion for a non-suit, and also on the following additional grounds: 1. That the organization of the company was a mere formal matter ; that it never had any property or business, and, therefore, there was never any necessity for filing and publishing the annual statement required by law. 2. That the plaintiff, having already recovered a judgment against Bamford, a stockholder, his claim against the defendant was merged in that judgment.

Motion denied. Defendant excepted. ■:

The defendant thereupon requested the court to direct the jury, “ that the plaintiff is not entitled to recover for his services for which he recovered judgment in the suit against Bamford.”

' The court declined, and defendant excepted.

The defendant finally requested the court to charge “that if the plaintiff could recover at all from the defendant, he could only recover for that portion of his services which were rendered during the time the defendant was a trustee of the company, which was about seven months.”

The court refused so to charge, and defendent excepted.

The court held the reports filed to be insufficient, and submitted to the jury the question whether the services

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were performed by the plaintiff, and if so, whether they were performed for the company or for Mr. Lestrade individually, charging them, if the work was done for the company, to return a verdict for the plaintiff for whatever sum, in their judgment, Ms services were worth; but, if the work was done for Lestrade, to return a verdict for the defendant.

At the conclusion of the charge, plaintiff’s counsel suggested, that if the plaintiff is entitled to anything, he 'is entitled to the amount of Ms certified bill.

The Court.—I think he is.

Waite, of counsel for the defendant, excepted to this remark.

Cook, of counsel for defendant, excepted to that part of the charge, in which the court had said, that if the jury found that the work was done for the company, they must find a verdict against the defendant for the value of the labor.

The jury retired, and afterward returned a verdict for the plaintiff for four thousand five hundred and eighty-six dollars and seventy-five cents.

Defendant’s counsel thereupon moved for a new trial on the judge’s minutes, which motion was denied.

After entry of judgment, defendant appealed from ■the judgment, and also from the order denying, defendant’s motion for a new trial.

Robert N. Waite, for defendant, appellant.

Frederick R. Coudert, for plaintiff, respondent.

The statute under which this action is brought, requires every company organized under its provisions to make, publish and file, annually within twenty days from the first of January, a report of its condition, which report shall be signed by the president, and a majority of the

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trustees, and shall be verified by the oath of the president or secretary of said company. And it is further provided that if any of said companies shall fail so to do, all the trustees of the company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall be made (Laws of 1848, ch. 40, § 12; 2 Rev. Stat., 5 ed., 661, § 35).

These provisions are enacted on grounds of public policy, for the protection of creditors and the prevention of frauds upon the public in respect to the financial condition of such corporations. It is clear that the liability of the trustees is not imposed as an indemnity, because it has no relation to the actual loss or injury sustained by the party, in whose favor the action is given (Merchants’ Bank v. Bliss, 35 N. Y., 412 ; affirming 13 Abb. Pr., 225 ; S. C., 21 How. Pr., 365 ; 1 Robt, 391).

It is in the nature of a penalty for misconduct in office (Dabney v. Stevens, 10 Abb. Pr. N. S., 39; S. C., 40 How. Pr., 341 ).

To escápe this liability the trustees must comply with the conditions prescribed.

The statute requires a report within the first twenty days of the month of January in each year after the formation of the company, and without reference to the time the company has come into existence. Being a penal statute, however, it is to be strictly construed whenever the penalty is sought to be enforced, and to prevent the injustice which a strict literal interpretation would have worked in many instances, the courts have invariably so construed it as to hold trustees only liable for their own default and misconduct, and not for the default or misconduct of their predecessors or successors in office.

The following four propositions, it seems to me, may now be regarded as the law of this State:

I

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Upon, the default of the company to report, all the trustees then in office are jointly and severally liable for all the debts of the company then existing, whether contracted by them or their predecessors, and .for all that may be subsequently contracted during their continuance in office until such report is made.

II. Trustees who upon such default retire from office, are liable for all debts of the company then existing, but for no subsequent ones.

III. Their successors, by promptly obeying the requirements of the statute, may escape all liability; but, if they continue the default until the next January, they are liable for the debts contracted during their administration up to that time, and for no other, unless they then and there make default, in which latter case they become liable for all debts then existing.

IV. Thus the members of successive boards of trustees may become liable for the same debts by reason of successive defaults (Boughton v. Otis, 21 N. Y., 261 ; Shaler and Hall Quary Co. v. Bliss, 27 N. Y., 297 ; affirming 34 Barb., 309 , and 12 Abb. Pr., 470 ; Garrison v. Howe, 17 N. Y., 458 ; Miller v. White, 57 Barb., 504 ; S. C., 8 Abb. Pr. N. S., 46; Nimmons v. Hennion, 2 Sweeny, 663 ).

This court has further held that a default of a company, happening after the expiration of the term of office of a trustee, cannot, for want of a subsequent election to fill his place, be charged upon such trustee except by proof of his continuance in office, by his afterwards assuming to act and acting as such trustee (Denning v. Puleston, decided April 1,1871).

Whether a judgment recovered against a company .is evidence of the indebtedness of said company in a subsequent action brought against a trustee, is a question which has produced much conflict of authority. In McHarg v. Eastman, 35 How. Pr., 205 ,

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this court held that it is not. The supreme court, on the other hand, decided in 1870, in Miller v. White, 57 Barb., 504 , that it is, holding, after a review of many-conflicting decisions upon this point, that the rule, that the judgment is evidence, is supported by such a preponderance of authority, that it should be left to the court of last resort to change it, if a change be desirable. Certain it is, that to charge a trustee, the statute does not require, as a preliminary step, the recovery of a judgment against the corporation, which is necessary to fix the liability of stockholders in certain cases, nor does it forbid such judgment.

The liability imposed upon a trustee is for certain debts, which must either be due and capable oí enforcement against the corporation, at the time of the alleged misconduct or default of such trustee, or have been contracted while he continued or acted as such after default.

In the case at bar, the judgment against the corporation was admitted in evidence against defendant’s objection upon the ground of immateriality, but at the same time the debt was proven by other evidence: In looking over the said evidence, I am satisfied that the plaintiff sufficiently proved, to be entitled to go to the jury at least, not only the rendition of the services and their price, but also his employment by the superintendent of the company, within the apparent scope of the latter’s authority, and a ratification of such employment and acceptance of the benefits accruing therefrom by the company. The question whether the services were performed by the plaintiff, and if so, whether they were performed for the company or for the superintendent individually, was distinctly submitted to- the jury, who were instructed to render a verdict for the defendant, in case they should find that the work was done for the superintendent individually. It was not necessary to prove a special authority on

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the part of the superintendent to employ plaintiff. The defendant might have requested that the questions of implied authority and subsequent ratification be submitted as distinct questions of fact to the. jury, under proper instructions. Having failed to do so, and acquiesced in that part of the charge which necessarily involved these questions, he cannot, upon appeal, be permitted to argue for the first' time that they should have been so submitted (Schroff v. Bauer, decided by this court, April 1, 1871, and authorities these cited).

There being sufficient evidence beyond the judgment to sustain the finding of the jury, it is unnecessary to express an opinion as to whether the judgment was or was not evidence against the defendant, and the latter having based his objection to its admission solely upon the ground of its immateriality, the exception taken to its reception cannot be sustained.

Neither of the reports filed in the office of the county clerk conformed to the statutory requirements. The statute demands that the report shall be signed by the president and a majority of the trustees, and verified by the president or secretary, which was never done. The report made in January, 1866, which was signed by three of the trustees and verified by the secretary, may at least be regarded as an attempt at substantial compliance.

But even if the statute can be satisfied with anything short of full performance, it seems too clear for argument, at least to me, that the report filed in 1867, which was signed and verified by the secretary exclusively, can have no force whatever to protect any of the trustees whose duty it was to see it made, published and filed in the manner prescribed by statute. The argument advanced, that the defendant should not be made liable for a default that he could not control, can have no weight in the face of the positive language of the statute.

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At any rate, whatever force there might have been in the suggestion, if defendant had in point of fact made a report so far as in his power, its force is wholly lost, by reason of the fact that defendant took no step whatever towards procuring a report. According to the proof, he was elected trustee on July 25,1866, for the year then ensuing, and commenced to act as such, the next day. Whether or not he became liable simply by acting as such, after and during the continuance of the default of the company in that year for any of the services rendered by plaintiffs during any part of that year, it is hardly necessary to discuss. The company failing to make and file a report as required by law in 1867, the defendant became liable, by reason of such default, for plaintiff’s claim up to December 31, 1866, and as no report was subsequently made, he continued liable for plaintiff’s services as long as he continued trustee.

Plaintiff’s claim extends to July 1,1867, on which day he left the company’s employ. That being within the year for which defendant was elected, he became Hable for the whole debt due to the plaintiff by the company at that time, and the plaintiff,, therefore, if entitled to recover anything, was entitled, as the evidence stood, to recover the balance of his bill certified as correct by the superintendent of the company.

The testimony of the plaintiff being uncontradicted upon this point, the result will be the same, whether the action be considered as brought to recover the value of the services, or the contract price per month, as testified to by him to have been agreed upon.

The recovery of a judgment of one thousand and twenty-six dollars and two cents by plaintiff against Bamford, cannot in any way affect this case. The liability of Bamford depends upon an entirely distinct state of facts, and upon a different statutory provision, by which an additional right of action is given. He was

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sued as a stockholder, under that section of the statute which makes the stockholders of a company jointly and severally individually liable for debts due and owing to their laborers, servants and apprentices, for services performed for such corporation. As such stockholder, Bamford is liable only to a certain extent; but that limit does not apply to trustees. The mere recovery of said judgment, without payment, is, 'therefore, no more a bar or merger, than the recovery of the judgment against the corporation. In the case of joint wrongdoers, a plea of a former recovery against one, to be good, must also aver actual satisfaction. And in the case of joint debtors, the rule that a judgment obtained against one bars a suit against all others, applies only where the judgment is based upon the same matter, cause and thing for which the second suit is brought (2 Phil, on Ev., 5 ed., 114 [*134]; Wies v. Fanning, 9 How. Pr., 546 ).

The statute referred to, gives not only a right of action against trustees for certain reasons, and another against stockholders for other reasons, bub expressly provides, in addition, that in the first case, the said trustees, and in the second case, the said stockholders, shall b% jointly and severally liable.

The judgment and order appealed from, should be severally affirmed, with costs.

Footnotes

* Present, Barbour, Ch. J., Freedman and Spencer, JJ.