Spencer v. Champion

Bisseli,, J. In this case, it is admitted, that the Smith 9Manufacturing Company were lawful owners of the demand* | fed premises. And it is further admitted, that the plaintiff has acquired their right, and is entitled to judgment, provided his executions be well levied. To these levies two objections have been taken. 1. That no demand was made on the executions. 2. That no application was made to the debtor to appoint an appraiser. ⅞; These objections were both resolvable into the first ; because it is obvious, from the facts stated in the case, that if there was a lawful demand, there was also a proper applieation to appoint an appraiser. The objection is, that the per? [550] sons of whom the demand was made, in the first instance, and to whom the application was made, in the second, were neither officers nor stockholders of the corporation. It is said, they were not officers; and in proof of this prop-ositioo, we are referred to the charter, in connection withy certain facts, appearing in the case. The charter provides, ! that the affairs of the corporation shall be managed by a board of directors, who shall hold their offices for one year; and shall be annually elected, at such time and place, as the regula-i tions of the corporation shall prescribe. There is, then, this further provision : “ That if it shall happen, that an election of directors should not take place, in any year, at the annual meeting of the corporation, the said corporation shall not, for that reason, be dissolved ; but such election may be held| thereafter, on any convenient day, within one year, to be fixed on by the directors, they previously giving public notice thereof.” It appears from the case stated, that the persons, of whom demand was made upon the executions, were chosen directors of the corporation, on the 10th day of January 1828 ; and that subsequently to that period, no directors were chosen, either at an annual meeting of the stockholders, or at any special meeting holden for that purpose. Now, it is contended, in view of the provisions of the charter, and of the facts here stated, that the persons named had become fundi officio, and had ceased to be directors, long before the demand was made upon them ; and of course, that the demand was entirely nugatory. Whether these claims of the defendant are well or ill founded, I do not think it necessary to determine; because, admitting them to be well founded, they furnish, in my opinion, no ground of defence. The charter, which has been already referred to, authorises the directors of this corporation “ to appoint and employ, from time to time, a secretary, treasurer, and such other officers, &c., as they may think proper, for the transaction of the business and concerns of the corporation.” Now, it appears, that on the 10th day of January 1828, the directors appointed Joseph Brainerd secretary, treasurer and agent of the company ; and that subsequently, no secretary, treasurer, or agent was appointed. The appointment of [551] |Brainerd was without limitation, in regard to time. It would iseern, therefore, to follow, as a necessary consequence, that, he continued to be secretary, treasurer and agent of the com-Ipany, at the time of the demand. The clause in the charter, 5which has been relied upon, to show, that the directors had ceased to be such, can have no effect upon this appointment, I The power to appoint is unlimited : the appointment was unlimited. is indeed stated, as a part of the case, that no secretary, treasurer or agent of the company, was ever appointed, fora jjlonger time than one year. But this can make no difference. For the principle is too well settled to be controverted, that |an annual officer, if there be no restrictive provision, in his appointment, holds his office until superseded by the appoint-merit of another in his place. McCall v. The Byram Manu-Afacturing Company, 6 Conn. Rep. 428. and the cases there cited. Brainerd, then, was the secretary, treasurer and agent of the company ; and it surely would be an idle waste of time to prove, that the demand was rightfully made upon him-It could have been made of no one else. But admitting, for the purposes of the argument, that Brain-erd was not secretary, &c. ; and that there was no officer of the corporation, upon whom a demand could have been made; |and ill it none was, in fact, made ; it by no means follows, that the levies were void. y Through whose neglect was it, that there were no officers ? . |Surely that of the corporation. And is it for them to raise i the objection that no demand was made 1 That the corpo- .• ration was dissolved, by reason of this neglect, has not been, ■; nor can it be, contended ; for though a corporation rriav be .- dissolved, by non-user or mis-user, and its franchises lost, ■i yet this must be judicially determined, in a suit instituted for :: |that purpose. Enfield Toll Bridge Company v. Connecticut; River Company, 7 Conn. Rep. 30. 46. Angell & Ames on Corporations 511. & n. : The corporation still existed, and its property still remained liable to the payment of corporate debts : unless, indeed, we ■ are prepared to sanction the extraordinary doctrine, that bv : Jneglceting to exercise its franchises, a corporation may place , its property beyond the reach of its creditors. I do not ; think this can be done, without a gross violation of all prirsci552 pie. Be it so, then, that there was no officer of this company, :; upon whom a demand could be made ; it follows, not that the; levies were illegal, not that they could not be made, but that⅜ no demand was necessary. And this is in precise conformity : to the principle adopted in analogous cases. If the execution, debtor be out of the state, no demand is necessary. “ Lex:: cogit neminem ad vanasen impossibilia.” But it is said, (and so, indeed, it appears from the case,);; that as early as January 1830, and before the levy of the j plaintiff’s execution, one Livingston Alexander became, and ; has since continued to be, the sole owner of all the shares of, the capital stock of said company ; and that he has never, in any manner, appointed Brainerd the secretary, treasurer or agent of the company. From these facts two inferences have been drawn : first, ; that the demand on Brainerd was nugatory, he not being a;| stockholder; and secondly, that it should have been made of Alexander, he being the only stockholder. Neither oí these inferences is correct. 1. The transfer of the stock to Alexander had no effect upon Brainerd''s character as agent. He had not been re-; moved. No other had been appointed. The stock of such companies is continually shifting hands ; and it would be very strange if the effect of every such event, was to remove all the officers of the corporation. If, indeed, it were an indispensable qualification of an agent, that he should be a stockholder,,the argument would apply. But precisely the converse of this is true. An agent need not be a stockholder,; any more than a mechanic or labourer. The charter does) not require, that he should be. 2. It is said, that demand should have been made of AlexL ander, Why.it may be asked, should this have been done ? He was not the debtor of the plaintiff'. The corporation was his debtor ; and upon that, a demand has either been made, or is dispensed with, by the rules of law. What more can be necessary ? Demand might as well be made of any other; stranger as of Livingston Alexander. Admit that he had become the owner of all of the stock of the company : and thus the sole corporation. Still the consequences are ⅛⅛ same as they would have been, had the stock been spread ovefe [553] the community, and owned by hundreds of individuals. Still it is a corporation 5 still it can act and be notified, only by its agentstill it is the plaintiff’s debtor ; still demand must be made upon it, or dispensed with. This, I think, has been done ; and there is no foundation for the objections that have been urged. It is objected, that upon one of the executions, an excess of land, to a small amount, has been taken. The objection was not much insisted upon, in the argument. And it is sufficient to observe, that the case falls within the principle settled, by this Court, in Huntington v. Winchell, 8 Conn. Rep. 45. I would advise the superior court, that judgment be rendered for the plaintiff. The other Judges were of the same opinion. Judgment for plaintiff.