Arthur v. Clarke

Collins, J. This appeal was taken by two of the defendants, not appellants heretofore, from the judgment entered against the defend [493] ants after the determination of an appeal taken by some of them from an order refusing a new trial, the opinion being reported in Arthur v. Willius, 44 Minn. 409, (46 N. W. Rep. 851,) with a full history of the case, by the reporter, preceding it. The question now before us has not previously been presented, and turns upon the sufficiency of the findings of fact as made by the referee who tried the action. The position taken by these appellants is that the referee’s conclusions of law, and the judgment entered' against them, were not warranted, because the referee found that the entire capital stock was not subscribed for or taken, and did not find that the appellants had in any manner waived or forfeited their right to defend, and to have judgment in their favor, upon the express ground that all of the shares of defendant corporation’s capital stock had not been subscribed for or taken; treating the finding precisely as if it had gone no farther than to assert as a fact that the appellants were subscribers only for shares of stock in a corporation, all of the shares not having been subscribed or taken. It is claimed that the views expressed in Masonic Temple Association v. Channell, 43 Minn. 353, (45 N. W. Rep. 716,) are in point, and that an application of the doctrine there announced determines this appeal against the respondents. It was there held that Gen. St. 1878, c. 34, § 4, which declares that on the filing of the articles the incorporation became a body corporate, has not abrogated, as between the corporation and the subscribers to its shares of stock, the rule of the common law that unless the charter, or the articles of incorporation, or the terms of the subscription, make a different rule, payment of the subscription cannot be required until the whole amount of stock has been subscribed. In the absence of a statement of the facts involved in the Channell Case, we take this occasion to call attention to the nature of the action. Channell had subscribed for shares of stock in the plaintiff corporation, and the action was brought by it to recover upon the subscription list. It was not an action against one who, as to the plaintiff, — whatever his relations may have been to other persons, —was a stockholder, but was an action upon his subscription, against one who had proposed and promised to become a stockholder, and then refused to proceed further. A marked difference exists between [494] the cases on the facts, although a determination of the one at bar is not made to depend upon any distinction. The finding to be considered is that whereby the referee found as a fact, among other things, that each of the appellants was a subscriber, and became and was a stockholder, in defendant corporation from October 11, 1881, to the extent of a specified number of shares of capital stock of a certain par value, a part of which value remained unpaid when this action was brought, — a corporation which, according to the findings, had been organized, put in operation, and was doing business, prior to December 1, 1880. To constitute a foundation for a judgment, the facts required to be found need not be as specific as the allegations of the pleadings, and they were not in this instance, but they must cover the ultimate facts forming the issues presented and tried. On the issuable facts the findings must be complete and certain, and, if the finding in question is so indefinite and ambiguous that it may he construed as meaning that the appellants were merely subscribers for shares of stock, and not full stockholders, with all that these words imply, then it was insufficient, and the judgment appealed from unwarranted. We cannot agree with counsel for appellants that this finding, when considered with others, can be construed as meaning that their clients may have been nothing more than subscribers, or so indefinite and ambiguous that it is impossible to determine whether they merely agreed to take, or actually did take, shares of stock. The finding is, explicitly, that they were subscribers, — persons who had entered into an agreement to take shares of the original issue of stock; and also that, subsequent to the commencement of business operations, they were stockholders, — owners of shares of stock in the corporation. The statute under which the plaintiffs proceeded against these and other defendant stockholders (Gen. St. 1878, c. 76, §§ 21, 22) fixed the liability, in this form of action, of all stockholders from whom amounts were due and unpaid upon shares of stock. Where an action is brought by virtue of and under the provisions of section 17 of said chapter 76, and it is ex.pressly found that the defendants were stockholders in the corporation, it must be held to include a finding that every condition precedent to their becoming full stockholders, and subject to liability, [495] bas been performed or waived. The judgment against appellants as «uch, for the amounts due and unpaid on their shares of stock, was justified by the findings. Judgment affirmed.