Lenoir v. Linville Improvement Co.

Furches, J.: The defendant is a domestic corporation and the plaintiff is a stockholder and creditor of the defendant corporation. Plaintiff, for the reasons alleged in his complaint, commenced this action for the recovery of his debt and for the appointment'of a receiver; and a receiver was appointed on the 23rd of August, 1893, who entered on the discharge of his duties on the 1st of September, 1893. At the time the receiver was appointed, Thomas F. Parker was the president of the defendant corporation, and H. P. Kelsey was secretary, elected at the last annual meeting, in July, 1893, and, as they allege, for the term of one year from that time next ensuing. It is true these facts are not presented with much clear [474] ness in the record. But it was alleged on the argument by Mr. Davidson, who represented these parties, that they were elected at the July meeting, and this was not denied as a fact by Mr. Davis, who represented the defendant corporation. Both Parker and Kelsey are parties to this action, and both presented claims for payment — one as president, and the other as secretary — as the record states, from the “1st of September, 1893, to the 1st of September, 1891.” The receiver, under the order of court, paid their “salaries” to the 1st of September, 1893, the time when the receiver took charge, and refused to pay them anything more. Under this state of the case the matter was referred to Isaac T. Avery, as a special master, and, without hearing-any evidence from either party, he reported “that as a matter of law” neither-Parker nor Kelsey was entitled to recover anything, and the court affirmed the ruling of the special master. So, without passing upon this ruling as a proposition of law', taking the court to use the word “accrue” in the sense of “originating,” still we do not think the ruling correct. It excluded these parties from the right to produce evidence as to the facts of their claims, and we think the case turns upon this ruling. These parties (Parker and Kelsey) could not recover this as a part of a salary due them as officers. Eliason v. Coleman, 86 K. C., 235. But, if they were entitled to pay, it was upon contract. If the defendant employed these parties, one as president and the other as secretary, for a term of one year, at a fixed and certain price, we do .not see why they should not be bound by the contract. It iá true, the defendant may show, if it can, that Parker and Kelsey acted in such manner as to release the defendant from its obligations altogether, or that they have earned that amonnt, or some part of it, at something else, [475] which the company is entitled to have applied in part or in whole in discharge of its liabilities. But it must be the act of these parties, and not that of the corporation, that will discharge the obligation of the contract. In the case of Eliason v. Coleman, supra, although the plaintiff was not allowed to recover against the defendant Coleman, it is right clearly intimated that he had a cause of action on contract against the company. The same intimation is made in the cases of Barnes v. Newcomb, 89 N. Y., 114, and in re Croton Ins. Co., 3 Barb. ch. 642. If these parties have valid claims, as they were parties to this action, it was a right they had to have them considered and settled before the receiver was discharged. And in this case it seems not only their right, but their only chance to get anything, as the corporation has placed a mortgage on everything it has for $60,000, which will be a prior lien to any judgment they might be able to recover. We recognize the rule to be that the powers of the stockholders and directors cease upon the appointment of a receiver, and they can make no contract to bind the company after that; and our ruling in this case is put upon the supposition that Parker and Kelsey would have been able to establish a contract with the company prior to the appointment of the receiver. This they may not be able to do, but the error was in not allowing them the opportunity to do so if they could. It seems to have been held in some of the early opinions that when the party who had procured the appointment of a receiver had been satisfied he had the right to have the receiver discharged. But this does not seem to be the rule now. It is held in more recent adjudications and by later text writers that when a receiver is appointed it is for the benefit of all the creditors, and the party procuring [476] the appointment has no right to have him discharged against the protest of a nonsatisfied creditor, who it appears might be damaged by the discharge. High, Rec. § 837. This, it seems to us, is the better rule, and we think 'there was error in discharging the receiver before the claims of Parker and Kelsey were heard and disposed of. And as it appears there were funds sufficient to satisfy their claims, if it should turn out upon investigation that they are entitled to said claims, or any part of them, the receiver should not be discharged until they are satisfied. There is error as herein pointed out. Error.