Griswold v. Seligman

Sherwood. C. J. 1. Corporation: how liability as stockholder may be assumed. This appeal questions the correctness of the ruling which denied plaintiff’s motion for executi°n against defendants. The point thus presented for determination is, whether the defendants are answerable as stockholders. The relation of stockholder may be created not only by the usual •formalities of subscription and the acceptance of stock, but other acts are, in contemplation of law, the legal equivalent of those just mentioned. That is to say, conduct on the part of the person sought to be charged is, of itself, sufficient to accomplish all that could be accomplished by the rigid observance of those formalities usually attendant on becoming a stockholder. The law declaratory of this position is well settled in America and by the earlier authorities in England. Thómp. on Stock., § 150. Thus, in action of debt for calls, one who, though not a subscriber had paid a call as such, was held estopped to deny his membership, and a like ruling was made in a similar instance, where the defendant had attended the half yearly meeting of the proprietors. Railway Co. v. Graham, 2 Eng. Ry. Cas. 870; Railway Co. v. Gunstone, 2 Eng. Ry. Cas. 870. So, also, where the issue raised, as- in the cases cited, was, whether the defendant was the proprietor of shares and consequently liable for calls, and it appeared that he had represented himself to the company in that capacity, claiming to be registered as such in consequence of scrip certificates purchased by him and sent in to the — 115 — company, for which lie had received receipts and a notice from the company that the scrip would be exchanged for sealed certificates on demand, he was.held estopped to deny his liability for calls, though the provisions of the act necessary to make him proprietor had not been complied with by the registry of his name or the entry or any memorial of transfer, Lord Denman, C. J., remarking: £‘A party cannot, by his own conduct, change his liability at pleasure. * * All the machinery which the legislature renders necessary to constitute a member is in this instance dispensed with by the conduct of the parties.” Railway Co. v. Daniel, 2 Eng. Ry. Cas. 728. And that case was held not distinguishable from one decided at the same time, where, in addition to the facts first noted, the defendant had paid calls on some shares and begged time as to others. Railway Co. v. DeMedina, 2 Eng. Ry. Gas. 735. In such cases it is held that a ££ valid and binding contract ” is formed between the company and the person sought to be charged as contributory if there has been a course of dealing with the company wherein they have permitted the alleged transferee to become a shareholder defacto. Straffon’s Extrs. Case, 1 DeG., Mac. & G. 576, and cases cited. The beneficial use of stock will also render the person so using it liable as shareholder. This is well illustrated in Maguire’s case, 3 DeG. & Smale 31, where the son, unaware that two shares had been transferred him by his father, signed certificates obtained from the company’s office as proprietor, and on several occasions by this means secured a free passage in the vessels of the company, was held properly placed on the list as contributory, the vice-chancellor saying : “ This gentleman is shown so plainly and distinctly to have represented himself and to have acted as proprietor, that in my opinion it is established that he is a proprietor, and if a proprietor, a partner and a contributory. In this country instances are abundant where parties sued as shareholders at the instance of the corporation or of creditors, have been held either estopped by their con- — 116 — duct from denying their liability, or that their conduct was cogent evidence of such liability. Thus, where a party who, though released from the obligation of his subscription, had subsequently voted at the annual meeting for directors, was himself elected as a director, acted in that capacity and as a stockholder, and paid money to the company, although no call was made therefor, it was held in an action for calls that these acts very strongly warranted the presumption that he had resumed his original obligation as a stockholder. Railroad Co. v. Stewart, 41 Pa. St. 54. Upon analogous grounds, one who had been voted a member of a New England parish, had in that capacity attended and voted at parish meetings and acted at trustee of the parish funds, was held a member, and that his body could be taken in execution for a parish debt, though he bad not, in compliance with statutory requisition, filed any certificate of membership. Chase v. Bank, 19 Pick. 584. And the enunciation of a similar doctrine is made by the supreme court of the United States when declaring that: ■“An implied promise is proved by circumstantial evidence; by proof of circumstances that show the party intended to assume an obligation. A party may assume an obligation by putting himself in a position which requires the performance of duties.” Webster v. Upton, 91 U. S. 65. The same court say, in Upton v. Tribilcock, 91 U. S. 45 : “ The acceptance and holding of shares in a corporation make the holder liable to the responsibility of a shareholder. * * A promise to take shares of stock imports a promise to pay for them. The same effect results from an acceptance and holding of a certificate.” And where a corporation had accepted parties as legal stockholders, entered their names on the stock books as such, and given them all the privileges of stockholders, it was held that they must be taken to be stockholders for the purpose of liabilities as well as sharing in the profits to be divided among the members. Bank v. Goodman, etc., 9 Cush. 576. In Sanger v. Upton, 91 U. S. 56, an action by an as — 117 — signee of a bankrupt corporation, where stock certificates were issued in blank to the defendant, and she paid, upon the stock twenty per cent of its par value at the time, and a like amount subsequently, and received a dividend from the company, and the stock stood in her name upon the books of the company, she was held liable, Mr. Justice Swayne remarking: “The only question was, whether she owned the stock. No one else claimed it. The certificates were issued and delivered to her. They belonged to her. They were the muniment of her title. She could have filled the blanks with her name whenever she thought proper. * * She was estopped from denying, her ownership. She could not assert her title if there was a profit and deny it if there was a loss.” It is very noteworthy in that case there was no evidence tending to show that defendant “ever subscribed for said certificates of stock, or for any stock of said company, or that her name appeared on any list of stockholders circulated hy said company.” There is no public register of stockholders provided for in Illinois, where that case arose. 3 Dillon 505. Nor was there any evidence to show that any creditor of the company became such subsequently to defendant’s purchase of stock, or in consequence thereof, or in short, altered his condition by giving credit to the company on the faith of defendant’s being a stockholder. So that case, as well as that of Carver v. Uptton, 91 U. S. 64, the record of which I have examined, and which was decided upon facts substantially similar, manifestly proceed upon these grounds, and can, in reason, proceed upon no other, that the time at which a person becomes a stockholder is not considered material, and that whenever a party, in consequence of his course of conduct, by his acts and representations, is to be deemed a stockholder as toward the company — is estopped by that conduct from denying his liability as to the company — he is likewise and for the self-same reasons precluded from denying his liability as to creditors. Eor whenever a person “has been treated as a shareholder by the company, and — 118 — has acted as a shareholder, both he and the company will be estopped from denying that he is a shai'eholder.” 1 lindley on Partnership, 129. “ If a person is a member of a company as between himself and the company, then, whether he is so by reason of his having become a member by complying with all requisite formalities, or by reason of the doctrine of estoppel, he ought, upon principle, to be deemed a member to all intents and purposes.” Ib., 129. And it would be anomalous, indeed, to hold that such a relationship by estoppel could exist as between a person and a corporation and yet have no existence as to creditors. Ib., 130. I have been able to find but one case, Vice v. Anson, 1 Man. & Rv. 113, where a creditor suing an individual not a stockholder de jure, for a corporation debt, has been denied recovery unless able to establish that the debt was contracted on the personal credit of the particular person sought to be charged. Mr. Thompson in his recent work treated this case as an exceptional one, and says it has frequently been “distinguished” by the English judges in subsequent cases. Thomp. on Stock., § 175. This statement finds confirmation elsewhere. Owen v. Van Ulster, 10 O. B. 318; 1 Lindley on Part., pp. 95 and 149, and cases cited. In Davidson’s case, 3 DeG. & Smale 21, as a mere matter of accommodation he was induced to sign for 100 shares, on the express understanding, a memorandum of which was entered in the company’s books, that he was to receive nothing and incur no liability in respect of the shares. Under this agreement he disposed of thirty shares, the-purchase money of which was paid to the directors, and afterward transferred the remaining shares to the manager, lie never received or paid anything in respect of the shares, nor did it appear that any one was prejudiced by his conduct, and yet he was held a contributory, Vice-Chancellor Bruce saying: “ It has not been proved or alleged that strangers did not, and I think it reasonable to assume that — 119 — strangers did become shareholders after the transaction.” We have in this State no public registry of stockholders, as in England and in some of our sister states. The public has no access to the book in which is registered the transfer of shares of stock,' or to any other book containing the names of the stockholders, those books being accessible to stockholders alone. 1 Wag. Stat.,-299, § 6, sub-div. 8. Consequently it must be very obvious that instances of holding one’s self out to the world as a stockholder, and so becoming chargeable can rarely occur here. This view finds support in the'reflection that under the terms of our statute no one is liable as a stockholder unless occupying that relation at the time of the issuance of execution. McClaren v. Franciscus, 43 Mo. 452. So that, if by some fortuitous circumstance a creditor should ascertain that a particular person was a stockholder and give credit to the corporation on the faith of such person being then a stockholder, it must be upon the faith also that such person would continue to be a stockholder down to the issuance of execution, a supposition which cannot, with any great show of reason, be indulged. In the present instance the defendants were appointed the financial agents of the company; they were large hol2. case adjudged, dei's of its bonds ; their names were entered on its books as stockholders; they held, and still retain, an absolute and unconditional certificate for 60,000 shares of the stock, which was a majority of the authorized stock; they voted that stock at one annual election, thereby electing the directors and other officers of the company, thereby obtaining entire management and control of its affairs. If after the course of conduct pursued by them, defendants can, in the face of the fact of voting as stockholders, now successfully assert their non-liability as such, it must be confessed that the doctrine of stockholdership by reason of implied contract and. by reason of estoppel as announced in the foregoing authorities, is shorn of whatever vigor it heretofore has been thought to possess. To — 120 — deny in such circumstances defendants’ liability would be to declare the unpalatable doctrine, a doctrine peculiarly unpalatable in American courts, that a person may play fast and loose; may enjoy all the benefits and emoluments of stockholdership without shouldering a tithe of its usually inseparable burdens; may accomplish by an indirection what could not be accomplished directly; may, in a word, be a stockholder to vote but not a stockholder to pay.' The bare statement of such a doctrine condemns it, and its perniciously unjust results justify the condemnation. But it is claimed that this case is exempted from the operation of the principles enunciated by the cases cited, and the defendants from the liability which otherwise had been incurred, by reason, first, of the contract entered into between defendants and the corporation, and by reason, second, of this statutory provision : “ Section 9. No person holding stock in any such company as executor, administrator, guardian or trustee, and no person holding such stock as collateral security, shall be personally subject to any liability as a stockholder of such company ; but the person pledging such stock shall be considered as holding the same and shall be liable as a stockholder accordingly, and the estates and funds in the hands of such executor, administrator, guardian or trustee, shall be liable in like manner and to the same extent as the testator or intestate, or the ward or person interested in such fund would have been if he had been living and competent to act and held the stock in his own-name.” Wag. Stat., p. 301. 3. Parol Evidence to Modify Written Contract. Relative to the contract in question, it is clear that parol evidence of contemporaneous “ agreements and understandings ” is as plainly inadmissible here . , ° . , , as it would be m any other instance whatsoever. Thomp. on Stock., § 121, and cases cited. Hence, parol evidence that “ it was understood that defendants were to have the privilege of voting the stock” is altogether incompetent to effect the purpose for which offered, i. e., — 121 — to add to or vary the written contract of the parties. Eor this reason the act of voting the stock mtist be regarded as one not done in the exercise of any contract right; but as a totally independent act — an act certainly not referable-in any manner to the contract relied on ; since that provided for the company to deposit with defendants a majority of the capital stock authorized to' be issued, said stock to remain in the control of defendants for one year at least, and the resolution of the directors merely provided that certificates for a majority of the capital stock be issued to defendants to hold in trust for the period of twelve months. The attempt must, therefore, prove futile to derive any authority to vote the stock from the stipulations of the contract. 4. corporation: pledge of stock: pledgee’s liability Nor is the opinion entertained that the contract brings defendants within the purview of the above quoted section of the statute ; for the very terms of the sec- . ^ tion suppose that stock has been issued in usual course, and then in consequence of either the death of the original stockholder, or the coverture or minority of the person beneficially interested, there is no one in esse who should be made “personally subject” to liability as a stockholder, and for this reason it is that the “ estates and funds ” in the hands of the fiduciary named, are made liable “in like manner and to the same extent,” as if death had not occurred in the one case, or coverture or minority existed in the other. The only other exception the section makes is where the stock is held as “collateral security,” but there, while the pledgee is expressly exempted from liability as a stockholder, the pledgeor is expressly held liable as occupying that relation. The section, in short, is one of exceptions; one declaratory of non-liability in certain specified instances, leaving the question of liability in all other cases to be determined as if no such section existed; and this, upon the familiar grounds that the expression of one thing is the exclusion of another, and that statutory exceptions are to — 122 — be strictly construed. Richardson v. Harrison, 36 Mo. 96, and cases cited. The evident purpose and policy, the fundamental idea of tbe section being discussed, as well as others in pari materia, both constitutional and statutory, require that the creditors of the corporation should be abundantly secured against loss; and this end was sought to be accomplished by providing that some person or estate should always be ready to respond to the demands of creditors. It seems too plain for discussion that any other construction would defeat the legislative purpose. If these views be correct, if the statute only exempts those classes of persons which it expressly designates, the defendants falling in neither of such classes, not being executors or administrators of some deceased stockholder, nor guardians or trustees of some one laboring under the previously mentioned disabilities, it can only follow that the case stands here for determination, as before stated, as if the section under consideration did not exist. Here there was no pledgeor, and, consequently, could be no pledgee within the meaning of the statute, since it is little less than absurd to say that a corporation could be its own stockholder. American Ry. Frog Co. v. Haren, 101 Mass. 398; Dayton & Cin. R. R. Co. v. Hatch, 1 Disney 84; Ex Parte Holmes, 5 Cow. 426 ; Brewster v. Hartley, 37 Cal. 15; State ex rel. Page v. Smith, 48 Vt. 266. Section 5152, United States Revised Statutes, is virtually identical with the section just discussed. Britton, president of a National bank, bought stock with the bank’s funds and held it registered on the books as held by “ Brit-ton, trustee for the bank.” Judge Dillon, in Johnson v. Laflin 5 Dill. 65 ; s. c., 6 Cent. Law Jour. 124, had under consideration section 5152, supra, in reference to the facts just stated, and held that “ Britton is responsible personally, inasmuch as he had no authority to act for the bank, and as there is no cestui que trust who is liable,” and the learned judge further held on that occasion, that “ in the eye of the law the transfer to Britton as trustee, is a transfer to — 123 — him individually,” and that “if it becomes necessary to assess the stockholders, he will be estopped to say that he is not individually responsible, since he was not acting by authority of any cestui que trust capable of taking and holding the shares. A similar ruling was made on the same section in Wheelock v. Kost, 77 Ill. 290, a proceeding by creditors, where a party loaned money to a National bank for the benefit of that corporation and received as collateral security the bank’s certificates of stock issued in pledge. Afterward he received semi-annual dividends thereon, and it was held that he was liable as a stockholder, Mr. Justice Scott, remarking : “ Whatever relation appellant may have sustained to the corporation of the bank, it seems clear that as to the creditors he occupied the position of stockholder, and must bear all the burdens that relation imposed. The stock had, in fact, been transferred to him. It stood in his name as owner, and he availed himself of the dividends it earned. Having voluntarily assumed the relation of stockholder, it makes no difference whether he may have done it to assist the bank in its credit or otherwise.” This decision met with approval in Pullman v. Tipton, 96 U. S. 328. 5. statutes deRIVED from OTHer states. A different view appears to have been taken in Maryland of section 9, supra, (Matthews v. Albert, 24 Md. 527,) whose provisions seem to have been copied , from the statutes of that state. The decision, however, having been made subsequently to our adoption of the section, does not carry with it that authoritative force that otherwise it would have done had its adoption occurred subsequently to that decision, and at all events the decision on the particular point is a mere arbitrary •declaration of a conclusion, unaccompanied by any reasons in its support, and is, therefore, entitled to but slight consideration. But a very pregnant circumstance in this connection should not be overlooked; a circumstance that distinguishes this case very widely from, the Maryland case, and that is, that the party sought to be charged there had — 124 — not in any manner estopped himself by receiving dividends or otherwise acting as shareholder. The case of McMahon v. Macy, 51 N. Y. 155, to which citation has been made, also differs from this, because in that case there was a responsible pledgeor, an absolute owner, answerable to the demands of creditors. The authorities cited by the court in that instance as showing parol evidence admissible to establish that stock was held as “ collateral security ” show nothing of the sort; they only annunciate the current doctrine that in equitable proceedings to redeem and the like, it is competent to show that a conveyance absolute on its face, was only intended as a security for a debt; a ruling always put upon distinct equitable grounds, (O’Neill v. Capelle, 62 Mo. 202, and cases cited,) and was never intended to overthrow the salutary and fundamental rule which pointedly inhibits the introduction of parol evidence to vary or control a written contract. Granting, however, for the moment, such evidence to be admissible in this instance, how stands the case with the defendants ? Their theory is that they never owned the stock; that it belonged to the corporation, that they held it merely “ in trust,” “in escrow” as “ collateral security.” But what becomes of that theory when we advert to the statutory prohibition, (sub-div. 5, § 6, Wag. Stat., 300,) that “ no person shall be admitted to vote on any shares belonging or hypothecated to the corporation.”' Is it not manifest that their former conduct in this regard and their present theory utterly fail to correspond? This is a case where “ acts speak louder than words;” where plausible theories go for nothing, when confronted by palpable facts. We cannot impute to defendants either ignorance of or a desire to violate the law, and so must conclude that they by the act of voting the stock represented themselves to the corporation, and were by the corporation regarded as fully entitled to the privileges they claimed and exercised. This being the case they certainly cannot be — 125 — heard to gainsay their heretofore admitted title ; to assert that “ title, if there was a profit, and deny it if there was a loss.” Sawyer v. Upton, supra. They are plainly estopped as toward the corporation, and if toward the corporation then this estoppel will inure to the benefit of the creditors of the corporation, who, in this proceeding, are subrogated to all its rights. Again, it is well settled in this country that the capital stock of a corporation is a trust fund for the payment of all its debts, and that the directors are trustees of such fund. This fund is jealously watched by the courts, and they have sedulously defeated all devices whereby the directors have issued to themselves “ paid-up stock ; ” all colorable transactions whereby stock has been taken in the name of a fictitious person or of a femme covert, or of an infant, (Thomp. on Stock., §§ 129, 182, 183, and cases cited,) and we see not why the same principle which forbids or thwarts all transactions of that nature should not step in and assert itself in the case at bar. The mischievous consequences are assuredly as great here as in the cases instanced, and the measure of relief afforded should be equally efficacious. Eor if it be an abuse of the trust fund for the trustees of a corporation to issue as paid-up stock, stock not paid-up, we are at a loss to discover why a like rule should not apply here, and why stock issued for the purpose of allowing defendants to acquire control of a corporation, as they themselves have testified, should not be charged against them as stock regularly issued, and they held accountable accordingly. As the result of these views, we reverse the judgment and remand the cause. Judges Napton and Hough concur. Judge Henry concurs in the result. Judge Norton dissents.