Tama Water-Power Co. v. Hopkins

Robinson, J. On or about the twentieth day of June, 1877, the Tama Paper Company was organized as a corporation for pecuniary profit. Its articles of incorporation provided for a capital stock of twenty thousand dollars, divided into shares of one hundred dollars each, to be paid at the call of the board of directors. The company was permitted to commence business when subscription for the twenty thousand dollars of stock had been taken. The private property of the stockholders was to be exempt from the payment of the corporate debt, excepting for amounts due on stock. Defendant was one of the incorporators and original stockholders of the company, and signed the stock subscription paper twice. Opposite his first signature was written, “Twenty-five shares.” Opposite his second signature, and following it, was written, “ Twenty-five shares of preferred stock, on which the [655] company guarantees ten per cent, interest, payable annually.” Another stockholder made similar subscriptions, and' all were required to make the total of twenty thousand dollars. Defendant was elected a director of the company, and was re-elected from time to time, and continued to act as director from the time the company was organized until it went out of business, after the debts in controversy were contracted. During at least a part of that time he also held the position of traveling agent of the company. He paid, on account of his stock subscription, the sum of twenty-five hundred dollars. Defendant admits the recovery of two judgments by plaintiff against the paper company, which amounted to more than twenty-five hundred dollars, when the case was tried in the court below, and that they are unpaid; but relies upon various defenses to this action, which we will proceed to consider. 1. cobbobasoribers to" fty to credit-" ors: estoppel, I. It appears that the second subscription of defendant was altered, after it was made, by striking the words “preferred” and “on which the company guarantees ten per cent, interest, payable annually.” The evidence shows that the alteration was made within five or six months of the date of the subscription, if not at the time; but defendant states that it was made without authority, from him, and that he had no knowledge of it until about the time this action was commenced. The books of the company fail to show any authority by the board of directors of the company, or by any one else, for making the erasure. So far as the evidence shows, the change in the subscription was made without authority, and without the knowledge of defendant, and the officers of the company empowered to act for it. Therefore, during the time in question, defendant must have believed himself to be the owner of fifty shares of stock. Appellant claims that he is released from liability in this action by reason of the alteration in the terms of his subscription. In reply to that, plaintiff [656] pleads that defendant is estopped from denying liability, by reason of the acts of the company and his connection with it, and we think the record shows that to be the case. The articles of incorporation which were signed by defendant do not provide for the issuing of preferred stock. The company had no power, under the articles adopted, to commence the business for which it was organized, until the full amount of its capital stock was subscribed. 1 Mor. Priv. Corp., secs. 57, 137, 141, 408. Notwithstanding that fact, on the day the company was organized its board of directors directed the collection of the stock subscriptions at once; a contract for the building of a mill was authorized; and the transaction of the business of the company was actively commenced, and continued for nearly ten years. Defendant knew that both of his subscriptions were necessary to authorize the company to do business, and with that knowledge he was active in the management of its affairs, and one of its managing officers. It is claimed that the evidence ¿Loes not show that plaintiff knew of and relied upon the second subscription of defendant. But we do not, think that was necessary to estop defendant. Plaintiff had a right to believe that the paper company was a legally organized corporation, with a capital stock of twenty thousand dollars, and undoubtedly relied upon that belief in dealing with the paper company. The acts of defendant in becoming a stockholder of that company, and in holding it out to the world as a valid corporation with the capital named, and in helping to manage its business, justified plaintiff, so far as defendant is concerned, in extending credit to the company. Under these circumstances, we do not think defendant should be heard to deny liability. What effect the alteration of defendant’s subscription would have as between himself and the company is a question we are not required to determine. 2 _._. —: set-off. II. Appellant claims that the paper company was indebted to him when this action was commenced in various amounts, aggregating abont six thousand dollars, and that he should be [657] permitted to offset so much, of that as is necessary to extinguish his liability, if any, for unpaid stock. The facts in this case bring it within the rule announced in Boulton Carbon Co. v. Mills, 78 Iowa, 460. It follows that the claim of appellant is not well founded. ___ ' — ! statute III. The indebtedness upon which the judgments of plaintiff were rendered was incurred for water-power furnished by plaintiff to the paper company. On the first day of January, 1884, there was an accounting for the power furnished prior to that time, and a note given therefor to plaintiff for $397.73. That note was merged in one of the judgments for which plaintiff claims to recover. This action was commenced June 15, 1888, and appellant contends that, as against him, all of the indebtedness which accruéd prior to June 15, 1883, is barred by the statute of limitations. It is not clear that any of the indebtedness in suit was contracted prior to the date last named, but, conceding that it was, that fact would not relieve defendant from liability; for it is not shown that plaintiff could not have collected the amount so contracted of the paper company when the note was given. Bank v. Greene, 64 Iowa, 450. 4 _._. ábseñoefrom siate. IV. The secretary of the paper company was authorized to collect the amount of the stock subscriptions on the twentieth day of June, 1877. Appellant contends that, as his liability was then fixed, the right to recover therefor is now barred by the statute. The subscription contract was in writing. Defendant was a non-resident of this state from the year 1874 until the latter part of June, in the year 1880. Therefore, plaintiff’s fight of action is not barred. ' — ! dissóiution of corporatmn :rem-V. Appellant claims that the paper company has ceased to exist, and that in consequence the relief sought by plaintiff can be obtained only by proceedings in equity. We do not discover -J , that any objection was made in the court below to the kind of proceedings adopted. [658] The liability oí defendant, and the method of obtaining relief, are provided for by sections 1082-1084, Code. The facts upon which the liability of a stockholder depends can, as a rule, be as readily ascertained by an action at law as by a proceeding in. equity. We think the proper action was adopted. Bayliss v. Swift, 40 Iowa, 651. VI. What we have said disposes of all material questions discussed by counsel. The judgment of the district court is Affirmed.