Gillin v. Sawyer

Emery, J. The Bangor Pulp and Paper Company was a corporation under the laws of Maine and doing business in this State. Certain of its creditors believing it to be insolvent asked tbe proper court of insolvency to so adjudicate, and to cause its assets to be administered under the direction of that court. The corporation, upon that petition and regular proceedings under it, was on the 4th day of June, 1896, adjudged to be an insolvent debtor, and on the same day the usual warrant was issued for the sequestration of its assets. On the 25th day of the same June the plaintiffs were appointed and qualified as assignees of the corporation under the insolvency proceedings. They received the usual instrument of assignment of the debtor’s estate and entered upon the duty of administering it. On the 18th of June, 1897,. they brought this action at law against the defendant to recover the par value ($100) of fifty shares of the capital stock of the corporation alleged to have been taken by the defendant and not paid for. The plaintiffs claim to recover, independent of any statute creating a liability of the stockholder for debts of the eorpoi’ation, upon the ground that the defendant stockholder was a debtor to the corporation for the unpaid stock, and that this debt was an asset of the corporation which they could recover as a debt due the corporation like any other debt due it. It appears, however, from the uncontradicted evidence, that if the defendant did take the fifty shares of stock as alleged, it was under an agreement with the corporation that the shares were fully paid for by the assignment of a lease of a business — 163 — plant to the corporation by the defendant and his associates. The lease was assigned to the corporation and the board of directors voted to accept such assignment in full payment for these fifty and other shares. There is no evidence of any intent to defraud the corporation or its stockholders by this transaction. So far as appears, the parties believed that the assignment of the lease was a sufficient consideration for the shares, and there was considerable evidence that it was in fact a sufficient consideration. Assuming, what was not disputed, that the directors had the powers of the corporation in this respect, the defendant did not owe the corporation anything for the stock. As between those two parties the stock was paid for. The corporation had no claim against him on that account, at least until it rescinded the contract and restored the property received in exchange for the stock, and this does not appear to have been done. Handley v. Stuts, 139 U. S. 417; Foreman v. Bigelow, 4 Cliff. 508. But the plaintiffs also claim, and rightly, that the creditors of the corporation are not bound by the contract above described and that they, as representing the creditors, have rights in respect to these shares superior to the rights of the corporation itself. They invoke the principle of law expressed in the statute, II. S., ch. 46, § 45, that the capital stock of any corporation is and stands for the security of all its creditors; and that no payment or agreement for shares of the capital stock shall be deemed a payment as against creditors, unless bona fide made in cash, or in some other matter or thing, at a bona fide and fair value thereof. This principle enables the creditors of the corporation to go behind even the honest opinion of the directors of the corporation and to question the actual sufficiency of the consideration paid for the shares taken by the defendant. By virtue of § § 46 and 47 of the same chapter, the plaintiffs, being “persons appointed to close up the affairs of an [this] insolvent corporation,” may maintain an action at law against the defendant for that purpose, and to recover any deficit in the actual sufficiency of the consideration. The defendant thus may be liable to pay to a creditor of the corporation or to the persons appointed to close up the affairs of the — 164 — corporation a greater sum, not exceeding the par value of his shares, than he was liable to pay to the corporation itself. This liability to creditors, however, is not a direct primary liability like that to the corporation upon subscribing for its shares. The insolvency statute alone does not authorize assignees to enforce it. It is a secondary liability somewhat like that of a guarantor. Hicks v. Burns, 38 N. H. 141. The authority to enforce it is conferred by the statute defining it. Sections 46 and 47, supra. The creditor of the corporation cannot at once upon the maturity of his debt proceed against the delinquent stockholder. He must obtain a judgment against the corporation, and only in case the judgment remains unpaid can he maintain an action at law or in equity against the stockholder for his individual claim, and then only for the amount remaining unpaid on the judgment. (Section 47.) The stockholder cannot be considered delinquent or in default until the creditor has recovered and holds such an unpaid judgment. The right of action against him then first accrues. Libby v. Tobey, 82 Maine, 397. The nature of the liability is the same when sought to be enforced by receivers, trustees or other persons appointed to close up the affairs of an insolvent corporation By the express terms of the statute (section 47) the liability is limited to “the deficiency of the assets” of the insolvent corporation. As the individual creditor must first have the fact and amount of his unpaid debt, that is, the fact and amount of the default of the corporation to him, judicially ascertained and adjudicated before he can move against the stockholder, — so receivers, trustees,' etc., must first have the fact and amount of the deficiency of the assets that is, the fact and amount of the default of the corporation to all its creditors, judicially ascertained and declared before they can move against stockholders. In either case there is no right of action against the stockholder until the corporation makes default, and the amount of the default is judicially established. The statute limitation of the right of action against the stockholder does not begin to run in favor of the stockholder until that has been done. There is usually no question in what court the individual — 165 — creditor may proceed to establish the fact and amount of the default of the corporation to him, but it may be an important question in what court, the receivers, trustees, etc., should proceed to establish the fact and extent of the default of the corporation to all its creditors, or the fact and amount of the deficiency of the assets. In this case, the creditors, instead of pursuing their individual remedies, or invoking the equity powers of this court, elected to have the estate of the insolvent corporation administered in the court of insolvency under the insolvency statutes. That court lawfully acquired jurisdiction of the parties and of the subject matter. The plaintiffs derive their powers of such administration from that court and those statutes, and are accountable to the corporation, its stockholders and its creditors in that court for the faithful and efficient exercise of those powers. What assets they are chargeable with, and what claims they shall recognize as liabilities of the corporation are questions primarily determinable by that court. It follows that the existence and extent of any deficiency of the assets of the corporation are likewise primarily determinable there. This determination, however, must be once for all, and hence only after a full administration of the estate of the corporation. The question of the amount of the deficiency of the assets, which is one measure of this secondary liability of the stockholder, evidently cannot be litigated anew and perhaps with a different result in the case of each stockholder. That amount must be the same as to all delinquent stockholders. The only difference in the amount of their several liabilities is in the amount unpaid on their stock. It follows that the fact and amount of the deficiency of the assets of the corporation must be determined finally in and by the court of insolvency before any action at law is begun against the stockholder on his secondary liability. This determination can be made only upon the settlement and approval of an account by the assignees showing a complete administration of the assets by their reduction to cash, and showing the net amount available for the payment of claims. Tí, at that date, claims have been — 166 — proved and allowed in excess of that amount, the fact and amount of the corporation’s default, as to those creditors at least, are then ipso facto judicially ascertained and declared. It is at the date of that decree of approval by the insolvency court that the right of action against the stockholder upon his secondary liability to such creditors accrues, and the two years limitation (section 47) upon the right of a'ction begins to run in his favor. Scovill v. Thayer, 105 U. S. 143; Hawkins v. Glenn, 131 U. S. 319. To prevent possible misconception of the scope of this opinion we iterate that we are only considering the case qf the secondary liability of a stockholder, who has paid to the corporation the agreed price for his stock and is not indebted to the corporation itself for any part of the price, but who is summoned to answer to creditors for the difference between the par value of his stock and what he actually paid for it. We are not considering at all- the primary liability of a stockholder to the corporation or its successors, the assignees, upon his stock subscription. That liability and its enforcement are governed by other rules and principles. The position of insolvency assignees in respect to a right of action against delinquent stockholders is analogous to that of an administrator who has paid a creditor in full under a mistaken impression that the estate was solvent. ’ In such case, if the estate afterward proves to be insolvent, the administrator is entitled to recover back from the creditor a pro rata share; but an action cannot be maintained by him for that purpose until the existence of the insolvency of the estate, and its extent have been ascertained and adjudicated in the probate court in which the estate is being administered. Morris, Admr., v. Porter, 87 Maine, 510. The plaintiffs’ position is also somewhat analogous to that of the receiver of a national bank who is closing up its affairs under the authority and direction of the Comptroller of the Currency, according to the provisions of the National Bank Act. Such receiver cannot maintain any action against a stockholder to enforce his liability, until the Comptroller has determined the existence and amount of the deficiency of assets, and made an assessment therefor on the stockholders. Kennedy v. Gibson, 8 Wall. 498. Indeed, — 167 — the adjudication of the Comptroller upon these questions is conclusive. Casey v. Galli, 94 U. S. 673. We do not mean, however, that the insolvency court in this case should apportion the deficiency of assets and make assessments on delinquent stockholders. The liability of the stockholder in this case is not pro rata as in the case of National Banks, but is absolute. As soon as the fact and amount of the deficiency of assets are ascertained in that court, there is a right of action in this court against any delinquent stockholder. That other delinquent stockholders are not also sued is immaterial under our statute. In this case, there is no evidence that the plaintiffs before bringing this action had proceeded so far in the administration of the estate in the insolvency court, that the existence and extent of a deficiency of the assets had been authoritatively ascertained and declared in that court. The mere fact that the corporation had been declared insolvent at the instance of the creditors is not proof of the existence of any actual deficiency of assets upon the settlement of the estate. An estate at first supposed to be insufficient, and hence subjected to the jurisdiction of the insolvency court, may under prudent administration turn out to be sufficient to pay all proved claims in full. The plaintiffs urge, however, that they offered such evidence, but that the defendant objected to it and admitted that there was a deficiency of assets. We find that the following occurred at the trial: The counsel for .the plaintiffs offered the records of the insolvency court in the case of the Bangor Pulp and Paper Co., insolvent debtor, to show the insolvency of the company and “ to show the amount of the assets.” The counsel for the defendant admitted the corporation to be insolvent but objected “to the amount of assets as immaterial.” The plaintiffs’ counsel did not press the matter nor ask for any ruling by the court. A little later in the trial the plaintiffs’ counsel said: “ In order to protect our rights, we wish to show that the amount of indebtedness proved against this company in the court below (the insolvency court) exceeded the amount of the assets which have been returned.” — 168 — The defendant’s counsel objected, and said: “We admit the assets are not sufficient to discharge the liabilities.” The court did not rule. The plaintiffs’ counsel did not insist, but seemed to be content with the admission. There was no admission, nor offered evidence even, that the estate of the insolvent corporation had been settled in the insolvency court, and that the existence and extent of a deficiency of the estate had been there judicially ascertained and declared. The admission and the offered evidence went only to the single point that the corporation was in fact insolvent, that its assets would not in fact meet its liabilities. There was no suggestion that there had been any action by the insolvency court in the premises, or that the assets had been so far realized, or even appraised and accounts so far settled, that the extent of the deficiency of assets was ascertained or could be ascertained before this action was begun. This however was the essential pre-requisite to the maintenance of the action. No right of action would accrue until then. The verdict must be set aside and the case sent back for the production of the requisite evidence, if any, of “the deficiency of assets,” judicially ascertained prior to the beginning of this action. Motion sustained.