Burt v. Real Estate Exchange

Opinion by Mr. Justice McCollum, The Real Estate Exchange of Philadelphia is an insolvent corporation, now and since October 26, 1891, in the hands of a receiver. It was incorporated November 11, 1886, and its authorized capital was $75,000, divided into shares of $50.00 each. The appellant subscribed for ten shares of the stock, paid ten per cent thereon, and received a certificate for the same. Ninety per cent of his subscription for it is still unpaid. In May, 1888. he caused the stock to be sold at auction, and it was bought by W. F. Deakyne for $2.00. As the corporation refused to transfer the stock to Deakyne without payment of a previous assessment upon it the sale was not perfected. On the 16th of May, 1888, the appellant was notified that the assessment was payable on or before the first of June, and as he did not pay it at or before that time he was, on the 11th of July, informed by the treasurer of the corporation that unless payment was made within the next ten days his stock or so much thereof as was necessary to meet the assessments upon it would be disposed of at public sale. At the expiration of the ten days he was still in default and the treasurer in a letter dated July 28, 1888, called his attention to it and said: “ It is incumbent on the Exchange to advertise your stock for sale. If you wish to avoid the expense and avoid undesirable pubhcity you can do so by .calling at the Exchange before August 6th, and executing a transfer of your stock in blank.” Acting upon the suggestion in the letter he caused a transfer of bis stock to be made in accordance with it, and after that he appears to have considered himself as released from all liability arising from his connection with the corporation. But as the creditors of the concern did not accept his view of the effect of the transaction he was made a party to this suit in which it was adjudged that he was not released from liability as a stockholder and that he should pay to the receiver tbe unpaid assessments on the stock he subscribed [622] for. Is the adjudication in accordance with the law applicable to the controlling facts of the case ? These, as found by the master, may be summarized thus, 1. When the appellant transferred Ms stock the corporation was insolvent. 2. The transfer was made for the purpose of escaping liability as a shareholder. 3. It was not entered on the books of the corporation and there was no designation at any tim e or place of a transferee. 4. While the appellant testified that the treasurer told him the letter of July 28 “was sent by the direction of the board,” and “that the transfer of the stock in blank would be a release of all claims for past assessments ” no action of the board authorizing the issuance of the letter or permitting the transfer in satisfaction of his liability as a sharehoi der was shown. The findings of the master appear to be well sustained by the evidence, and the accuracy of them is not called in question by any specification of error. It seems to be conceded that upon the facts as found hy Mm the appellant is not released from liability to the creditors, but it is claimed that Ms liability is secondary and enforceable only after the other assets of the corporation, includmg the balances due on the subscriptions of the shareholders who have not executed transfers of their stock in blank, are exhausted. But this claim manifestly ignores the equities of such shareholders and the allowance of it would constitute a discrimination against them for which there is no warrant in the charter of the corporation, or in the law applicable to the facts of the case. The vice of the appellant’s contention lies in the assumption that his relation to the creditors and shareholders of the corporation was changed by the transaction we have described, while the fact is that their rights and equities against Mm were unaffected by it. As against them-the transaction did not constitute a valid transfer of his stock. “ A transfer of shares in a failing corporation, made by the transferrer with the purpose of escapmg his liability as a shareholder, to a person, who from any cause is mcapable of responding in respect to such liability is void as to creditors of the company, and as to other shareholders, although 'as between the transferrer and the transferee, the transfer may be out and out; ” Aultman’s Appeal 98 Pa. 505. The appellant havmg transferred his stock in blank for the purpose of escaping Ms liability as a shareholder, and having failed to designate any transferee of it capable of [623] responding in respect to such liability, bas no legal or equitable cause to complain of tbe decree appealed from. The specifications of error are overruled. Decree affirmed and appeal dismissed at the costs of the appellant.