Pitman v. Ball

COX, J. Defendant assigns as error the action of the court in excluding certain testimony. That the finding of the court is contrary to the evidence under the law, and the refusal of the court to give one instruction asked by defendant. 1. The contention of defendant is that his stock in the corporation was fully paid up. That his interest in the mining lease at the time the corporation was formed had an actual value equal to or in excess of the face of his stock, $12,500. At the trial, defendant offered to prove that in the latter part of 1903 or the early part of 1904, the parties who at that time, held [393] a lease upon tbe same land covered by tbe lease when tbis corporation was organized, bad sold bis lease for $60,000. On objection of plaintiff that tbe time was too remote from tbe time of tbe organization of tbis corporation and that it bad no tendency to show tbe actual value of the property at the time tbe corporation was organized, tbis offer was rejected and objection sustained. We do not think tbe court committed error in excluding tbis testimony. A sale of a lease upon tbe same land four or five years after tbe date of tbe formation of tbis corporation would, in our judgment, throw no light upon tbe question as to tbe actual value of tbe lease held by Wright and Ball in 1899. 2. It is next contended by defendant that tbe finding of tbe court is against tbe weight of tbe evidence. That tbe cause should be reversed, for that reason. Tbe evidence shows that Wright and Ball paid nothing for tbe lease which they obtained and which formed tbe capital stock of tbe corporation at tbe time it was organized. It further shows that mining operations upon tbis tract after tbe organization of tbe corporation were not successful. Tbe corporation became insolvent and dissolved in 1902. One witness testified that in bis judgment the lease bad no market value in 1899, while several other witnesses testified that it did have a value of from $25,000 to $40,000. Tbe trial judge saw the witnesses was in a better position to weigh their testimony than we are, and we defer to bis finding upon that question. 3. Tbe instruction asked by defendant which was refused by tbe court is as follows: “Tbe court declares tbe law to be that if tbe defendant when be subscribed for stock in tbe Investors Mining Company subscribed for and took it as fully paid, then tbe Statute of Limitations began to run in his favor as against any claim made on him for unpaid capital stock, whether made by said corporation or a creditor of said corporation, from tbe date defendant’s [394] subscription was delivered to the company, and if the court believes from the evidence that defendant’s subscription to the capital stock of the Investors Mining Company was made and delivered to and received by said company as fully paid stock more than five years before the commencement of action, then this action is barred by the Statute of Limitations and the finding must be for the defendant.” This instruction declares the law to he that if parties should form a corporation alleging their capital stock to he fully paid when it is not, that no creditor of the corporation could have any right of action against the stockholders after the expiration of five years from the time of the formation of the corporation. This would seem a strange doctrine indeed and we cannot give it our sanction. Nor are we cited to any authorities which sustain this position. Appellant in his brief makes the point that the account of the Jasper County Supply Company, which was assigned to plaintiff, and which went into and formed a part of the judgment which he obtained against the corporation of which defendant was a stockholder, accrued more than five years before the commencement of the present action and for that reason the judgment against the corporation, which he now seeks to recover from this defendant, was barred by the Statute of Limitations. To sustain this position we are cited to the cases of McGinnis v. Barnes, 23 Mo. App. 413, and McGinnis v. Kortkamp, 24 Mo. App. 378. In those cases McGinnis held the obligations of a defunct corporation and brought suits against Barnes and Kortkamp to recover his debt on the ground that they were stockholders and had not paid their capital stock in full. The action was brought more than five years after the dissolution and insolvency of the corporation but within five years after the maturity of the debt which he sought to collect. The court held that under the facts in those cases, the right of the creditor [395] to sue tbe stockholders did not accrue at the dissolution of the corporation hut accrued at the maturity of his debt. Hence, the Statute of Limitations in those cases did not begin to run until the maturity of the debt. From this the appellant argues that the maturity of the debt starts the Statute of Limitations to running, and, hence, no one could be sued upon that debt, after the expiration of five years. "We do not agree with this position nor do we understand that the decisions referred to sustain it. On the other hand, our conclusion is that in this case, like all others, the Statute of Limitations does not begin to run until the right to maintain an action has accrued. In this case, the plaintiff had no right of action against defendant as a stockholder for unpaid subscription to stock in the corporation until its insolvency and dissolution in 1902, and plaintiff having kept his account against the corporation alive by reducing it to judgment, and having begun the present action within five years after it accrued against the defendant, his action is not barred. The judgment is affirmed. Nixon, P. J., concurs; Gray, J., not sitting.