Ward-Truitt Co. v. Bryan

Beck, J. (After stating the facts.) The plaintiff insists that a verdict in its favor was demanded in the court below, and that the court properly directed the verdict, and erred in setting that verdict aside upon motion made by the defendants. We agree with counsel'for the plaintiff that there was never any proper organization of the corporation as alleged to exist in the answer of the defendants. There was no stock subscription, or list of stockholders: no minutes were kept. In view of such facts, we are of the opin [773] ion that there was no change in the relationship of the individuals composing the firm of Bryan and Lamb. While the defendants do testify that the partnership had been dissolved, in the light of other evidence in the case, touching the forming of a corporation, it clearly appears that they consider the partnership as dissolved and transmuted into a corporation by the fact of a so-called organization of the corporation under the charter and the election of officers. / But, as we have pointed out, there was no organization, no subscription to stock, no corporation. Scarcely, it may be said, was there a shadow of a corporation. It is not merely the case of a defective or imperfect organization of a corporation, or some irregularity in the formation of the corporation; but the corporate was non-existent. And mere uncontradicted testimony that the plaintiff dealt with such corporation as a corporation will not prevent the enforcement of a claim against the firm whose names are signed to the notes. Suppose in this case that the corporate stock of the company amounted to $10,000, and there had been paid in but half of the amount; for how much would Mr. Lamb, and for how much would Mr. Bryan, be liable to creditors for unpaid subscriptions? Neither of them had any definite number of shares of stock; what they did was all in parol. And if such pretended organization is to be treated as a corporation, so as to exempt the alleged stockholders from liability as partners, then it would seem that any two merchants doing business as partners could simply say to one another, we will consider ourselves a corporation — I will be president and you secretary and treasurer; and this fact would exempt them from liability as partners to a creditor selling them goods with knowledge of this formation ■ of a corporation. Judgment reversed. All the Justices concur.