Christensen v. Eno — 8 N.Y. St. Rep. 682

Majority

p. 682

Christian T. Christensen, Resp’t, v. Amos F. Eno, impleaded with the Illinois and St. Louis Bridge Co., App’lt.^[1]

(Court of Appeals,

Filed June 7, 1887.)

Headnote

1. Corporations—Liability op shareholder to whom stock is issued as a gratuity.

The liability of a shareholder to pay for stock does not arise out of his relation, but depends upon his contract, express or implied, or upon some statute; and, in the absence of either of these grounds of liability, a person to whom shares have been issued as a gratuity has by accepting them committed no wrong upon creditors, nor does he make himself liable to pay the nominal face of the shares as upon a subscription or contract.

2. Same.

The courts of Missouri, under a statute authorizing a creditor of a corporation, who shall have had an execution against it returned unsatisfied, to issue an execution against any stockholder to the amount of his stock, “ together with any amount unpaid thereon,” granted such an application

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against a director and stockholder who had received, bonus stocks and bonds, holding that the amount of 40 per cent credited on the stock could be regarded as the amount paid under the statute. This statutory remedy, of course, is not available in this state.

Appeal from a judgment of the supreme court, general term, first department, affirming judgment of special term in favor of plaintiff, who was a judgment creditor of the Illinois and St. Louis Bridge Co., a corporation organized under the laws of Missouri and of the United States statutes. It had a capital of four million dollars, divided into 40,000 shares. An arrangement was made with brokers to sell the bonds to the amount of capital, allowing a bonus for selling the whole or a part. Two million and a half were sold by them, and one and a half by the company. The amount unsold, viz: $300,000, was distributed by the company among its stockholders, under the following resolution: “ Resolved, That certificates be issued to the stockholders for the twenty per cent stock bonus to which they are entitled as purchasers of the one and a half millions of bonds, and that no deduction be made on account of the two and one-half per cent commission paid for the sale of these bonds.” Defendant Eno received at that time as stockholder twenty-five shares of stock, by the certificate of which it was stated that it was paid up to the extent of $40 per share, while in fact he had not paid anything.

Afterwards the bridge company made another series of bonds to the amount of two million dollars secured by mortgage, and divided one million among its stockholders to replace money paid in on their stock. The company called in the remaining $60 per share on the twenty-five shares issued to Eno, but he never paid it. He received $6,875 of the bonds above referred to, for which he paid nothing. Judgment was given that plaintiff, a judgment creditor against Eno for $1,000, which was the amount of his unpaid subscription with interest, and $5,332.18, the value of the second mortgage bonds with interest. This was affirmed on appeal to general term, and defendant appealed to this court.

William Mann, for app’lts; C. E. Tracy, for resp’t.

The judgment below proceeds on the ground that the forty per cent credited as paid on the •twenty-five shares of stock of the Illinois and St. Louis Bridge Company, issued to the defendant Eno in 1871, but which was not in fact paid, and also the sum of $5,332.18, realized by him on the sale of second mortgage bonds of "the company, received as his share on the distribution of the same among .stockholders, pursuant to the resolution of the company of December 20, 1871, were equitable assets in the hands of the defendant Eno, applicable to the payment of the debts of the corporation, and which the plaintiff, as a judgment and execution creditor, may reach in this action, and have applied to the satisfaction of his judgment. It is very plain, upon the facts, that the plaintiff, in assert

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ing this claim cannot stand upon any right existing in the-corporation itself to proceed against the defendant Eno. The transactions by which he acquired the shares as paid-up shares to the extent of forty per cent of their nominal amount, and received the bonds, created no obligation as between him, and the company to pay the amount unpaid on the stock, or to account to the company for the bonds or their proceeds. As between Eno and the company it was not intended that the former should be accountable to the company for the amount unpaid on the stock or for the bonds. Viewing the transactions in the light most favorable to the plaintiff, the credit on the stock, and the transfer of the bonds were intended as a gratuity to the stockholders who had been called upon to pay calls on their original subscriptions in excess of what was expected, and of what was represented would be necessary at the commencement of the enterprise. There can be no doubt that, as between the corporation and its stockholders, these transactions were binding according to the actual intention. The corporation itself would have no standing to demand that the defendant Eno should pay the forty per cent on the stock which it acknowledged had been paid, or that he should account for the proceeds of the bonds. The claim of the plaintiff, therefore, must be maintained, if at all, not in the right of the corporation, or by way of equitable subrogation to any right of the corporation against Eno, but in hostility to the arrangement between them under which he received the stock and bonds. The plaintiff, to entitle himself to the relief demanded, is compelled to maintain that, as a creditor of the corporation, he has rights superior to those of the corporation itself, and may hold the defendant to account for the unpaid forty per cent on the stock as though he had been a subscriber therefor, and for the proceeds of the bonds as though he had purchased them of the corporation, or had sold them on its account.

So far as respects the claim to recover the forty per cent, unpaid on the twenty-five shares of stock, we understand it is placed by the learned counsel for the plaintiff mainly on the proposition that the ‘ capital stock of a corporation is a. trust fund for the security of creditors, which cannot be given away or distributed among stockholders so long as debts of the corporation remain unpaid, and that the transaction in question was a violation of this principle. The general principle asserted is doubtless well founded; but, if it had an appropriate application in the" present case, the plaintiff would encounter some difficulty, under the authorities in this state, in maintaining a separate action, as an individual creditor of the corporation, to reach assets which constitute a trust fund, not for the protection of one creditor only, but equally for all the creditors of the corporation. Griffith v. Mangam, 73 N. Y., 611 , and cases cited.

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But, passing this, we are of opinion that the forty per cent, credited on the twenty-five shares of stock issued to the defendant Eno cannot be considered as, and does not constitute, a trust fund applicable to the payment of creditors. The capital of a corporation consists of its funds, securities, credits, and property, of whatever kind, which it possesses. The word “ capital,” applied to corporations, is often used interchangeably with the words “capital stock,” and both are frequently used to express the same thing—the property and assets of the corporation. Strictly, the capital stock of a corporation is the money contributed by the corporators to the capital, and is usually represented by shares issued to subscribers to the stock on the initiation of the corporate enterprise. See Burrall v. Bushwick R. Co., 75 N. Y., 212 , and cases cited. It may be admitted that the liability of subscribers on unpaid stock subscriptions constitutes an asset of the corporation which cannot be surrendered or given up by the corporation without consideration, to the prejudice of creditors. 'It is not claimed that there is any express prohibition in the charter of the bridge company against issuing shares purporting to be fully paid, without actual payment. The charter authorizes books of subscription to the stock to be opened. The most that could be claimed from this provision is that by implication it prohibits'the issue of stock except to actual subscribers who should undertake to pay the nominal amount of the shares when required. There is no pretense that the defendant Eno ever subscribed for the twenty-five shares of bonus stock, so called, or entered into any engagement to pay the forty per cent, credited thereon. This was distinctly contrary to the intention of all parties. The plaintiff seeks to charge him as though he had subscribed for the stock, and entered into a contract obligation with the company to pay the forty per cent. We can see no ground upon which he can be made to respond to the creditors of the company as upon an unpaid subscription.

Assuming that the transaction as to the company was ultra vires, or that it could not give away its shares, the transaction in that view was simply a nullity, and Eno got nothing as against anyone entitled to question the transaction. But it did not convert him into a debtor of the company for the forty per cent. He entered-into no contract to Eay it. He has received nothing on account of the twentyve shares, and it is not claimed that the charter in terms imposes the liability claimed. The unissued shares of a corporation are not assets. When issued, they represent a proportionate interest in the shareholder in the corporate property—an interest, however, subordinate to the claims of creditors. There are unquestioned public evils growing out of the creation and multiplication of shares of stock in corporations not based upon corporate property. The remedy is with the legislature. But the liability of a shareholder to

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pay for stock does not arise out of Ms relation, but depends upon Ms contract, express or implied, or upon some statute: and, in the absence of either of these grounds of liability,, we do not perceive how a person to whom shares have been issued as a gratuity has, by accepting them, committed any' wrong upon creditors, or made himself liable to pay the nominal face of the shares as upon a subscription or contract. Seymour v. Sturgess, 26 N. Y., 134 ; In re Western of Canada Oil Co., 1 Ch. Div., 115; Waterhouse v. Jamieson, L. R., 2Sc. & Div., 29.

The question as to the right of the plaintiff to compel the defendant to account for the sum realized by him on the sale of the bonds is affected by the fatal difficulty that the defendant has received nothing from the corporation except its promise to pay, which has never been performed. The plaintiff has withdrawn nothing from the funds of the company on account of the bonds (unless it may be a sum represented by a single interest coupon), and creditors have not been prejudiced by the transaction. It is alleged, and it was offered to be proved, that the property of the company had been sold on the foreclosure of the first mortgage.

It is unnecessary to consider what the right or liabilities of the defendant would be, in respect to the bonds, as between himself and other creditors of the corporation on a distribution of assets, or if it had appeared that the corporation had paid the bonds issued to the defendant. The situation, in either of these aspects, is not presented. This is not a case of following assets of a corporation wrongfully transferred. The defendant has received none of the funds or assets of the company available to creditors. The loss on the bonds falls on those who have purchased them relying on the credit of the corporation. The situation of the general creditors has not, so far as appears, been affected by the fact that- the company received nothing for the bonds.

The statute of Missouri, the state from which the bridge company in part derives it existence, authorizes a creditor of a corporation who shall have obtained judgment against it, upon which an execution has been returned nulla bona, to issue execution thereon against any stockholder to an extent equal in amount to the amount of stock held by him, “together with-any amount unpaid thereon.” The courts of Missouri, on an application under this statute for leave to issue execution against a person who was a director and stockholder in the bridge company who had received bonus stock and bonds, granted the application, and came to the conclusion that the forty per cent credited on the stock could be regarded as the amount paid thereon within the statute, and that the amount received on the bonds was also recoverable. Skrainka v. Allen, 7 Mo. App., 435 , and 76 Mo., 384 . The statutory remedy is, of course, not available in this state. Lowry v. Inman, 46 N. Y., 120 . The court seems to have given much weight to the fiduciary and trust rela

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tion existing between a director of a corporation and its. creditors. That relation did not exist between the defendant Eno and the creditors of the company. He was a. stockholder simply, and no trust relation exists between a stockholder in a corporation and its creditors. The decision in Missouri may stand on its special circumstances, but it is not controlling in the case before us.

We are of opinion that the judgment appealed from is erroneous, and that it should therefore be reversed and a new trial ordered.

All concur.