Evert v. Felska

*388 Wilson, C. J. The appeal is from an order denying a motion for a new trial. Plaintiff seeks to recover a stockholder’s assessment arising out of defendant’s alleged constitutional liability. Defendant claims an equitable set-off equal to his stockholder’s liability by reason of a loan made to the corporation prior to its failure. He received a promissory note containing a statement that the corporation would not pay any dividends until the note was paid nor would it carry merchandise in excess of $55,000. By the terms of the note it was payable out of the surplus of the maker. Defendant has filed his claim, and the order allowing it limits its payment to the funds in the hands of the receiver after all other claims and expenses are paid. The defendant is to be heard in a case of this character as to his individual defenses. McCabe Bros. Co. v. Farmers G. & S. Co. 172 Minn. 33, 214 N. W. 764. Whether defendant’s claim is a contingent one is not of importance. He simply cannot offset the corporation’s indebtedness to him. Helm v. Smith-Fee Co. 76 Minn. 328, 79 N. W. 313; Harper v. Carroll, 66 Minn. 487, subd. 16, p. 506, 69 N. W. 610, 1069; Richardson v. Merritt, 74 Minn. 354, 362, 77 N. W. 234, 107, 968; note to Shurlow v. Lewis, 41 L.R.A.(N.S.) 996, and cases cited at sub-notes 64 and 65; Reimers v. Larson, 52 N. D. 297, 202 N. W. 653, 40 A. L. R. 1177, Anno. 1183, 1191; 3 Clark & Marshall, Private Corp. pp. 2390, 2172, 2625; 7 Fletcher, Cyc. Corp. § 4246. Affirmed.