Bauman v. Kiskadden

Jones, J. In this case the trustee in bankruptcy seeks to recover from the stockholder the difference between the par value of the stock which was issued to him, under a written agreement, and the value of the real and personal property which was turned over to the corporation in payment thereof, manifestly seeking relief under the principle announced in the case of Gates, Admr., v. The Tippecanoe Stone Co. et al., 57 Ohio St., 60. In sustaining the demurrer the court of common pleas held that Section 8688, General Code, applied to cases of this class and that the action was barred. On the other hand, counsel for the trustee contend that the section above noted applies only to what is known as the double liability of stockholders, and that it does not affect actions upon subscriptions -for unpaid stock. This view was adopted by the .court of appeals. Section 8688, General Code, must be read and construed in connection with the two sections relating to the same subject, and which immediately (precede it. They are as follows: “Sec. 8686. The stockholders of a corporation who are holders of its shares at a time when its debts and liabilities are enforcible against them, — 134 — shall be held liable, equally and ratably, but not one for another, in addition to their stock in an amount equal thereto, to the creditors of the corporation, to secure the payment of such debts and liabilities. No stockholder who transfers his stock in good faith, if such transfer is made on the books of the company or on the back of the certificate of stock properly witnessed or tendered for transfer on its books prior to the time when such debts and liabilities are so enforcible, may be held to pay any portion thereof.” “Sec. 8687. The next preceding section shall not apply to stockholders in a corporation created after the twenty-third of November, 1903, nor to debts or liabilities of a corporation incurred after such date. As to all debts and liabilities of corporations for profit incurred after such date, the stockholders thereof shall be under no liabilities other than those stated in Article XIII, Section three, of the Constitution of Ohio.” “Sec. 8688. An' action upon the liability of stockholders under the two next preceding- sections can only be brought within eighteen months after the debt or obligation shall become enforcible against stockholders.” The constitutional provision adopted November 3, 1903, referred to in Section 8687, is as follows: “Dues from private corporations shall be secured by such means as may be prescribed by law, but in no case shall any stockholder be individually liable 0 otherwise than for the -unpaid stock owned by him or her.” In the analysis and determination of the question — 135 — involved it is important to note that these code sections relate to the same subject-matter and were embodied by the legislature of the state in a single enactment, and furthermore that prior to the adoption of Section 8687, General Code, the limitation section (Section 8688, General Code, formerly Section 3258a, Revised Statutes) had acquired a fixed meaning, established by the act of its creation (95 O. L., 312), applying such limitation solely to a double stock liability. The question, therefore, remains, What is meant by the term “liability of stockholders” found within these three codified sections? Does this term, as variously used in these cognate sections, include the liability or obligation due upon an unpaid subscription for stock? We have no hesitation in holding that it does not. Unquestionably, before the adoption of Section 8687, General Code, it cannot be claimed otherwise than that the entire subject-matter referred only to the double liability of stockholders. The adoption of the later section has changed neither the meaning nor the intent of the act. Section 8687, General Code, is merely a qualification or limitation upon the preceding section, and was not intended to and does not create any additional liability other than that mentioned in the preceding section, upon which it rests and of which it formed a part when originally adopted. An examination of Section 8686, General Code, discloses that the subject-matter under legislation was simply the stock liability, or what is known as the double liability, under the constitution and laws of this state. No other meaning could attach to the lan — 136 — guage used therein, “shall be held liable, equally and ratably, but not one for another, in addition to their stock in an amount equal thereto.” Obviously this section cannot apply otherwise than to the double stock liability. Furthermore, while Section 8687, General Code, releases corporate stockholders in corporations created subsequently to November, 1903, from liability as stockholders, evidéntly it does not include a liability for unpaid subscription, for a stockholder would be liable for an obligation of that character whether the corporation was created before or after the date named. But it is insisted that the latter portion of Section 8687, General Code, when considered with Article XIII, Section 3, of the Ohio Constitution, imposes a positive liability thereunder for the unpaid subscriptions for stock. These sections do no more than recognize an existing obligation upon the part of the stockholder to pay his stock subscription. This obligation rests upon the stockholder irrespective of the constitution and statute. It is not an obligation created by law, but one resting upon contract between the stockholder and the corporation. It is a corporate asset. The present provision of Article XIII, Section 3, of the Constitution, in this regard, is substantially similar to the constitutional provision upon that subject before its amendment. In the various cases touching the liability of stockholders considered by the supreme court of this state, the term “liability of stockholders” had obtained a well-recognized definition. In every case treating of the subject of “stockholders’ liability” or the “liability of stockholders” — 137 — the supreme court recognized that those terms comprehended only the double liability imposed by the constitution and statutes of the state and did not include an obligation or liability upon the part of the stockholder to pay for his unpaid stock. The distinction between the liability of a stockholder under these statutes and his obligation to pay unpaid subscription upon stock, and the further distinction between their legal and contractual character, has been recognized in the following cases: Wright et al. v. McCormack et al., 17 Ohio St., 86; Hawkins v. Furnace Co., 40 Ohio St., 507; Barrick v. Gifford et al., 47 Ohio St., 180, 184, and Peter v. The Farrel Foundry & Machine Co., 53 Ohio St., 534. In Hawkins v. Furnace Co., supra, speaking of this statutory liability of stockholders, the court' said, at page 513: “ Tt is a security provided by law for the exclusive benefit of creditors, over which the corporation authorities can have ho control.’ To repeat what is here said or inferred. The liability of the stockholder is to pay the debt of the corporation, not his own debt. His obligation is distinct and dehors that of the company.” It is possible that a mere subscriber for stock may not thereafter assume the relation of a stockholder, but may assign his subscription to another. In such case a right of action upon the subscription contract might be sustained against the subscriber, while the stockholder liability would be enforced against his assignee, who obtained the initial issue of stock. The former is an action at law for a money judgment upon the individual contract be — 138 — tween the subscriber and the corporation (Smith, Receiver, v. Johnson et al., 57 Ohio St., 486, 490); the latter action is an equitable one upon the liability created by law resulting from the stockholder relation. This distinction is made in other jurisdictions. In the case of Barrick v. Gifford et al., supra, Justice Minshall quotes Mr. Cook as to the dual character of the liability of the subscriber and stockholder as follows: “This rule is based upon the principle that the liability of the shareholder is not a primary resource of corporate creditors, and is not, therefore, to be resorted to if the assets of the corporation, including the assessments on the stock enforceable at common law, will suffice to pay the debts.” Furthermore, the section providing the venue in which the action shall be brought, to-wit, Section 8690, General Code, grants such right “on account of a liability created by law,” and this section remains now as it was before the adoption of Section 3, Article XIII of the Constitution, and Section 8687, General Code. It has been held that the double liability created by statute is a secondary liability only, and is not to be invoked until the primary fund or liability shall be exhausted. If a stockholder owes an unpaid amount upon his subscription for stock, then this amount constitutes an asset of the corporation which may be enforced under the provisions of our statutes by the directors after call. ( Sections 8632 and 8674, General Code.) It is only upon the insolvency of the corporation that the creditor is entitled to invoke the equitable remedy against the — 139 — various stockholders for the pro rata share due from each; but before this is done the primary fund of the corporation or its assets, including an obligation of this character, should be enforced as an obligation due to the corporation. (Section 8691, General Code.) And it is only when the corporation is insolvent and has not sufficient property or effects to satisfy the creditor that the court ascertains the “liabilities of the * * * stockholders” and enforces them by judgment. (Section 8692, General Code, and Bronson v. Schneider, 49 Ohio St., 438.) This section in itself discloses that the liabilities of the stockholders named therein can refer only to the secondary or double liability of stockholders. It has already been noted that the language of the present constitutional provision in this regard is not dissimilar from that formerly employed, inasmuch as both of them, in terms, recognized a liability for unpaid stock. Before the adoption of Section 8688, General Code, the supreme court of this state applied a different limitation in an action upon stockholders’ liability from that upon written stock subscription. Hawkins v. Furnace Co., supra, and Warner v. Callender et al., 20 Ohio St., 190. In the former, or stock-liability case, the court held that the six-year statute was applicable, and in the latter action, one upon a written, unpaid stock subscription, the court held that'the limitation, ran fifteen years after the call for subscription was made. It cannot be well insisted that the legislature in- ' tended to give a corporate creditor a less limitation — 140 — of time to enforce the payment of a stock subscription than the corporation itself had or than its receiver would have when seeking a mere dissolution of the corporation, and yet, if the construction claimed should be given to Section 8688, General Code, cases may well arise where the directors of a corporation would have a much longer period to enforce the payment upon a subscription for stock, while the creditors themselves, under this view, would be relegated to the period of eighteen months after the actual or legal insolvency of the corporation. Manifestly such is not the purpose of the statute. Its only purpose was to affect simply the double liability of the stockholders and to provide a short period of time for its enforcement upon the part of the creditor after legal bankruptcy or insolvency. The judgment of the court of appeals is affirmed. Judgment affirmed. Nichols, C. J., Johnson, Wanamaker and Matthias, JJ., concur.