Jones v. Brennan

Mr. Justice Sears delivered the opinion of the court. We are of opinion that upon the facts established by the evidence and found by the master in chancery, the recommendation of the master that plaintiff in error’s petition be dismissed was unwarranted, and that the decree of the court dismissing the petition for want of equity was erroneous. Plaintiff had ceased to be a shareholder by the withdrawal of his shares, the surrender of the certificate to the association and the receipt and cancellation of the same by the association while it was a solvent concern. This is established beyond controversy, and it is in effect so found by the master. The learned counsel for the defendants in error contended that by a system of book-keeping the association made this transaction into a subscription for and payment upon other shares of stock, but no acquiescence or knowledge of plaintiff in error is shown. It is conclusively established that he agreed only to leave a part of the money, due him upon the withdrawal' of his stock, with the association for a stated time. He had ceased to be a shareholder by the acceptance and surrender of his shares of stock. It was upon his ceasing to be a shareholder that this money became due him. The association could not, merely by its book-keeping, again make him a shareholder for new stock without his consent or knowledge. The master does not find any facts to support this contention of defendants in error, and yet he recommends a decree in accordance with the contention. We are of opinion that the facts of this case bring it squarely within the decision of this court in Gallagher v. Brennan, 99 Ill. App. 81. In that case it was held that a withdrawing stockholder, who had permitted his certificate of stock to be canceled by the association while it was a solvent concern, might leave with the association the money due to him upon such withdrawal, and thereby become a creditor of the association. It was held that thus leaving money due to him from the association did not bring him within the class of Kriete, in Columbus Association v. Kriete, 192 Ill. 128, for Kriete did not defer taking money due to him from the association in a proper transaction, but brought money to the association for deposit, the receiving of which by the association for that purpose was held to be unauthorized. In this case, as in the Gallagher case, plaintiff in error had severed all relation to the association as a shareholder, had no voice in the management of the association, and had been treated merely as a creditor bv payments at different times upon the balance due him. The fact of these several payments at different times, amounting to $400, is wholly irreconcilable with the theory that the money thus retained was received by the association upon a new stock subscription. The doctrine contended for by counsel, that once a stockholder, always a stockholder, until fully paid the amount due upon withdrawal, irrespective of cancellation of stock and termination of membership, can not be sustained, in view of the decisions in Kiclcert v. Suddard, 184 111. 149, where Mrs. Bickert was held to be a creditor and not a shareholder, and in view of the decision noted in the Gallagher case. It is true that in the Bickert case, the withdrawing member had received a check on bank for the amount due to her, but it is also true that the check had never been cashed, and at the time of the adjudication the money due to her upon her withdrawal still remained in the hands of the receivers of the association. Yet she was held to have been a creditor and not a shareholder. We regard these decisions as applying and controlling. In Dooling v. Smith, 89 Ill. App. 26, cited and relied upon by defendants in error, it appears that the shares of the member who undertook to withdraw were not surrendered and canceled before insolvency. Therefore the decision does not apply. It is also contended by counsel for defendants in error that there is a variance, in that the petition of plaintiff in error alleges that the money in question was loaned by him to the association. We are of opinion that the decision in Columbus Association v. Kriete, 192 Ill. 128, sufficiently disposes of this contention. The court said in that case, in disposing of a like objection, “The claimants are not in the status of original suitors; nor do we think the same strictness of allegation should be applied to them.” We are of opinion that the allegations of plaintiff in error’s petition are sufficient to warrant relief prayed, and upon the facts established. The decree is reversed and the cause is remanded.