Parker v. Heald

Mr. Justice McComas delivered the opinion of the Court: It is clear that the subscribers to the “capital stock” are to be deemed partners in this association, and each one of such members became liable to the creditors of the association. Norwood v. Francis, 25 App. D. C. 471. If the plaintiff below is found to be a creditor, her right to sue such members cannot be disputed, and all of the members are liable to suit. In the present case, five only have been made defendants, but this suit is maintainable against them unless they plead in abatement the nonjoinder of their associates, which they have not done. It would not suffice, however, to set up as a defense that there are others who are liable as partners, for such a plea in abatement must contain the names of all the members, so as to give to the plaintiff a better writ. Cabell v. Vaughan, 1 Wms.’ Saund. 291b, note 4; McGreary v. Chandler, 58 Me. 538; Kingsland v. Braisted, 2 Lans. 20. The defendant Freeman, who acted as president, and the defendant Garden, who acted as treasurer, until 1902, who each managed to redeem stock by taking real estate from this insolvent association, did not thereby cease to be members. The constitution provided that stock and dividends could be canceled by purchase of real estate, but this did not terminate the participation of the president and treasurer in this business, and the long incumbency of the principal offices by them shows that Freeman and Gardner must still be regarded as partners, and they were properly sued as defendants. It is to be observed that this suit was instituted by the executrix of Edwin Ileald, whose death would have terminated his [39] partnership in this association, if he ever had been a partner, and there is no provision in' the articles of association requiring a notice of assignment or transfer of the interest-bearing-stock to be given to the association, nor any provision whereby the person who succeeded to his interest should become a partner. This interest-bearing stock was fully paid up when issued, and it was to bear 6 per cent interest, payable semiannually, and to be redeemed in five years from the date of its issue. It was expressly provided that certificates of capital stock may be transferred by proper assignment on the back, and the transfer was to be noted by the secretary on the register of the association; and the certificate used by the association provides on its face that it was to be “transferable by indorsement hereon and surrender of this certificate.” No such requirement was made respecting the interest-bearing stock, the certificate for which had on its back these words only: “For value received -hereby sell, assign, and transfer unto--all my interest and claim to the within certificate. Date —■—. Witness this-day of-.” This certificate was negotiable in like manner with a promissory note; by indorsement and delivery any assignee acquired the legal title without any notice to the association, and it remained an unconditional promise by the association to pay the sum named at a definite time, bearing interest at 6 per cent, payable semiannually. The holder of such certificate was not entitled to dividends, but to interest only. It was called stock full paid, but the certificate holder did not share in profits as such. It was in fact the association’s promise to pay $600 in five years after date. It nowhere appears that the holder of a certificate of interest-bearing stock was to participate in stockholders’ meetings. It was stipulated that “stockholders holding in their own right or as trustees shall be entitled to one vote on each share of stock so held, providing all dues are paid.” This stipxxlation included holders of shares of the capital stock, and impliedly excluded holders of certificates of interest-bearing stock. There is no evidence that Edwin Ileald, who died in 1899, or his executrix, ever attended a meeting of the stockholders. It is true one [40] witness testified that the holders of interest-bearing certificates were allowed to participate in meetings of stockholders, bnt he failed to say that any of such persons ever attended such meetings. On behalf of the appellant it was urged that the constitution was amended so as to provide that 40 per cent of the entire receipts should be a sinking fund, one half thereof to be used to pay withdrawers, and the other half held as a permanent redemption fund. This provision was a substitute for a sinking-fund provision which applied only to holders of the capital stock, and the amendment did not enlarge the class. There is no evidence, however, in the record that the original or amended sinking-fund provision was at any time obeyed, or that there was a sinking fund, and at the annual meeting of the association on January I, 1902, this amended sinking-fund provision itself was ■ repealed. This happened more than a year before the plaintiff’s claim was due and payable. If this provision had remained in force, however, we would incline to say that a claim payable out of a sinking fund when accumulated 'is none the less a debt because at a given time such assets may not actually be in the debtor’s hands. A creditor in this position holds a demand conditioned as to the manner in which the. claim is to be-discharged. After careful consideration we have determined to regard substance rather than form. The holder of this interest-bearing stock had really no interest in the profits or losses of the-business of this association. The association was under no obligation to pay Heald more than it actually received from him, with interest thereon. It could not discharge its obligation to-him by paying him less. In substance this was a case of borrowing .money and promising to pay it. Whether we call this, paper stock, note, or bond, the nature of this transaction is to be determined by the real substance and effect of the contract between-the parties. It was competent for this voluntary association to borrow money, and it borrowed $600 from the plaintiff’s testator; and the true relation between this association and the holder of a certificate such as we are here considering; [41] is that of debtor and creditor. Under this contract the association owed Heald $600, with interest payable semiannually, and the principal became payable five years after the date of the' obligation which the association gave him. He was termed a stockholder, and the promise to pay which was given him was designated as stock. In this case these are mere names. In substance this certificate is a promissory note; Heald at, the time of entering into the contract, evidenced by this certificate, was a creditor. Nothing done or omitted by him or his executor or by this association changed Ms relation to it. As we have said, the only express provision giving a shareholder a right to vote conferred such right upon the holders of the capital stock. The constitution and by-laws failed to-confer any voting privilege upon the holder of interest-bearing stock. The certificate is silent upon this point, and since any assignee of Heald’s certificate, without any notice whatever, was-entitled to all the rights accruing to Heald as the holder of this certificate, we think it was not contemplated that such holder was a stockholder entitled to vote his stock in the meetings of' this association. We are convinced that the original holder or the assignee of a certificate like that of Heald is a creditor of the-association, and that this interpretation only will carry into effect the intent and purpose of both parties in making this, contract. This contract must be interpreted as an agreement upon the-part of the defendant to pay to the plaintiff and his assignee the amount of $100 upon each of the six shares represented by the certificate in suit, at the expiration of five years from its. date, with 6 per cent interest thereon, payable .semiannually. It is not necessary for us to discuss the cases relied on by the appellants, which deal with the status of the holder of paid-up shares in building associations. Those are cases of corporations and of building and loan associations under the familiar statutes creating such bodies corporate. In many of the cases cited,, the certificates were transferable only on the books of the company, as were the shares of the capital stock of the unincorporated association we are here considering. We have examined [42] those cases, but they are not persuasive. We do recognize, however, that some decisions appear to take a view different from our own, and in cases not wholly controlled by local statutes or the charter or by-laws of the incorporated associations. We concur in the reasoning of the courts in Cook v. Equitable Bldg. & L. Asso. 104 Ga. 828, 30 S. E. 911; Cashen v. Southern Mut. Bldg. & L. Asso. 114 Ga. 990, 41 S. E. 51; Vought v. Eastern Bldg. & L. Asso. 172 N. Y. 516, 92 Am. St. Rep. 761, 65 N. E. 496. The considerations which lead those courts to hold lenders like Iieald to be creditors apply to the circumstances of this case, where Heald loaned the money to a voluntary association, and received such a certificate as we have discussed. The learned court. below committed no error in holding that the plaintiff below was a creditor; that these defendants were liable as partners in a voluntary association; that, in the absence of the plea in abatement, this suit against these defendants should proceed to judgment that the president and treasurer had not, by the transactions we have mentioned, escaped from their liability as partners; and that the plaintiff was entitled to judgment for the principal sum, with the unpaid interest thereon down. This judgment must be affirmed, with costs. It is so ordered.