Underwood v. Stafford

PARKER, J. Appellant -assigns as error the trial court’s conclusions of law and the judgment based thereon. In this assignment we find no merit. [225] Plaintiff alleged that 'the stockholders and directors had committed a fraud upon the corporation and its creditors by distributing and dividing among themselves all of the corporate assets and appropriating such assets to their own use. Plaintiff’s evidence failed to support this allegation. On competent evidence the trial court found the facts to be otherwise. To most of these findings appellant has taken no exception. They are conclusive on appeal. Nationwide Homes v. Trust Co., 267 N.C. 528, 148 S.E. 2d 693. The court’s findings of fact support the conclusions of law, which in turn support the judgment entered. By brief and argument appellant stresses the fact that the corporate balance sheet of 30 September 1960 showed total assets of $70,617.16, of which $57,334.53 were current, and that the evidence disclosed and the judge found as a fact that by February, 1961, when the corporation had ceased doing business, only certain fixed assets remained. From this appellant argues there must have been some improper distribution of the approximately $57,000.00 of current assets. The evidence, however, is that the same balance sheet showed liabilities of $59,926.02,. of which $56,754.02 were current liabilities, and that corporate assets were applied to pay corporate liabilities. There was a complete failure of proof to support plaintiff’s allegation that corporate assets were improperly distributed among the stockholders. The only corporate assets which, so far as the evidence disclosed, were transferred to the stockholders, consisted of certain office furniture and fixtures and two automobiles. The trial court found as a fact that the stockholders had paid the corporation a fair and adequate consideration for the furniture and fixtures and that the automobiles had no economic value to the corporation, since the unpaid balance of the mortgage payments due thereon assumed by the transferees equalled or exceeded their value. Appellant did not except to these findings. It is true, of course, that those charged with the liquidation upon dissolution of a corporate business may not lawfully prefer one creditor or group of creditors over others in the same class. Plaintiff, however, has never alleged that the defendant stockholders and directors did this. Neither in the original complaint filed in 1963, nor in the amended complaint filed in 1968 after one trial and appeal to the Supreme Court, is there any such allegation. The allegation in the original complaint that “there are no other creditors of Southern Excess, Inc., whose rights have been adversely affected by defendants’ wrongful appropriation of corporate assets,” falls far short of alleging a cause of action based on the theory that payments [226] bad been made to other creditors in which plaintiff had a right to share. Furthermore, this allegation was omitted from the amended complaint. “The plaintiff must make out his case secundum allegata, and may recover, if at all, only on the theory of the complaint. Proof without allegation and allegation without proof are equally fatal.” 6 Strong, N.C. Index 2d, Pleadings, Sec. 36. This cause having been twice tried upon the theory alleged, that the defendant stockholders had wrongfully appropriated corporate assets to their own use, the appellant may not now on this appeal urge a different theory based upon the contention that other creditors were improperly preferred. “Where a cause has been tried on one theory in the lower court, appellant will not be permitted to urge a different theory on appeal.” 1 Strong, N.C. Index 2d, Appeal and Error, Sec. 4, p. 108. There was also a failure of proof of the allegation, which first appeared in paragraph XIII of the amended complaint, that the defendants were liable to the corporation for “the failure to issue its stock for a valuable consideration or to issue any stock.” The evidence indicates that the present defendant stockholders acquired their stock in Southern Excess, Inc., by purchase from earlier stockholders. The corporation was previously named Freeman and Stafford Insurance Agency, Inc., and the evidence indicates the corporation had a tax loss carry over at the time the present stockholders acquired their stock and took control of its operations. However, no evidence was offered to support plaintiff’s allegation that there had been a failure to issue stock for a valuable consideration or to issue any stock. Appellant’s assignments of error 2 through 6 inclusive are directed to the trial court’s rulings excluding certain proffered testimony. We have examined all of these carefully and are of the opinion that none of the excluded testimony bore with sufficient materiality upon any issue in this case as to make the court’s action in excluding it prejudicial to the appellant. These assignments of error are overruled. Appellant assigns as error the finding of fact made by the trial court that the two automobiles acquired by the defendants had no economic value to the corporation at the time defendants acquired them, contending there was no competent evidence to support this finding. In our opinion there was sufficient competent evidence to support this finding. In addition, appellant made no exception to this finding, and in the absence of any exception, this finding of fact is binding on appeal. Nationwide Homes v. Trust Co., supra. Appellant did except to and assign as error the finding of fact that “[a] 11 [227] property of the corporation which was acquired by the defendants, having value to the corporation or its creditors was acquired by defendants as a result of a bona fide purchase for adequate consideration.” This finding was clearly supported by competent evidence, and the assignment of error directed to this finding is overruled. Appellant’s final assignment of error is directed to the trial court’s refusal to make certain findings of fact as proposed by the plaintiff. We have examined all of these and are of the opinion that the proposed findings were not determinative of any issue in the case or were adequately covered by findings of fact which the court did make. This assignment of error is also overruled. The judgment appealed from is Affirmed. Campbell and Hedkicic, JJ., concur.