Corporation, Foreign: assessment for unpaid balance due on stock; Receiver. Judgment. Res Judicata. Receiver. Fraud. Estoppel. Limitations, Statute of.
A decree of the District Court of the United States for the District of Connecticut in a suit in equity against a Connecticut corporation wherein a receiver was appointed, confirming a report of a special master relating to assessments due from certain stockholders by reason of unpaid balances due upon stock held by them and directing the receiver to collect such assessments by suits if necessary but leaving for determination in such suits by the receiver the questions, whether any stockholder acquired his particular stock in good faith and without notice of any unpaid balance thereon and the circumstances under which his particular stock was acquired by him, and whether such facts might be a defence in an action to collect the assessment or might be material in such an action, is binding upon the defendant in an action brought by the receiver against a stockholder in Massachusetts for an assessment adjudicated in the decree except as to the personal defences therein described, although such defendant received only a postal notification of the proceedings in Connecticut and never was personally served with process nor appeared therein.
In the action by the receiver against the Massachusetts stockholder above described, it appeared that the statutory law of Connecticut at the time when the defendant became a stockholder and continuing to the time of the trial was that "Every stockholder, whether an original subscriber or not, shall be liable for any balance due on the stock held by him. If a corporation is placed in the hands of a receiver . . . such receiver . . . shall have the powers of the board of directors in calling in instalments on stock;" that certain common stock held by the defendant was purchased from stock originally issued to another person, to whom it was delivered for "options and other things of claimed cash value" but no real value, which "were never put on the books of the company and never counted into the company's assets in any way" and were not delivered to the company; that the original purchaser turned the stock back to the corporation, and it then was issued to the defendant as a bonus with certain preferred stock purchased by him. Held, that, even if it were open to the defendant in the action in the Massachusetts court to attack the decree in the receivership proceedings in the United States District Court collaterally on the main issues of the necessity and extent of the assessments, such defence was groundless.
In the action by the receiver against the Massachusetts stockholder, above described, the defendant interposed, as a personal defence in the nature of an equitable estoppel, that he was induced to purchase the stock by misrepresentations of an agent of the corporation, not known to the purchaser to be false, that the stock was "fully paid and non-assessable." Held, that, whatever remedy the defendant might have had before the appointment of a receiver of the corporation, in this action by the receiver to recover the difference between the par value of the stock and what was paid for it when issued, the liability created by the Connecticut statutes could not be avoided by reason of fraud or a misrepresentation by the corporation.
The Massachusetts stockholder, the defendant in the action above described, purchased his stock in 1908. The receiver of the corporation was appointed in 1909. Without there having been a preliminary assessment upon the stockholder, a decree was entered in the receivership proceedings in April, 1911, directing the receiver "to call upon the stockholders . . . to pay the unpaid, if any there be, par value of the stock held by each of them respectively," and to institute suits to recover such sums. In 1913, a decision was rendered in the receivership proceedings that the decree of 1911 should not have been made until there had been a preliminary assessment of the stockholders, and the suit was referred to a master for such an assessment. In 1915, a decree was entered whereby a report by that master was confirmed, assessments accordingly were made, the "stay of proceedings against stockholders" was "vacated," and the receiver was ordered to enforce collection of the assessments. The Massachusetts action was brought in March, 1917, and the defendant set up R. L. c. 202, § 2, as a defence. Held, that the cause of action did not accrue as early as the time of the appointment of the receiver in 1909, and that the action was not barred by the statute of limitations.
De COURCY, J.
This action of contract is brought by the receiver of the Gilbert Transportation Company, a Connecticut corporation, to recover from a Massachusetts stockholder the balance alleged to be due on the stock standing in her name on the books of the company. The facts are not in dispute. The defendant in July, 1908, purchased from an agent of the company ten shares of the preferred stock of the corporation at $95, and received five shares of the common stock as a bonus, in accordance with the terms of the company's prospectus. The corporation became financially involved, and a receiver was appointed by the District Court of the United States for the District of Connecticut in October, 1909. A special master appointed by that court found that the company's indebtedness was so large that it was necessary to assess stockholders for the full amount of the unpaid par value of the stock. The district court on March 17, 1915, entered a "judgment and order for assessment against stockholders," ordering the receiver to collect by suit if necessary. The defendant was assessed $500 on the common stock, and the unpaid balance of $50 on the preferred stock.
1. It is clear that the decree of the District Court of the United States for the District of Connecticut is binding upon the defendant, except as to "personal defences." As was said by Knowlton, J., in Howarth v. Lombard, 175 Mass. 570, 576, 577: "The stockholders must be assumed to have understood the statute from the first as it has been construed by the court. They must be presumed to have agreed that on the insolvency of the corporation a receiver might be appointed by the court, and the affairs of the corporation administered, and the amount of its assets and liabilities determined, and the deficiency ascertained under the order of the court, and an assessment to meet this deficiency made ratably upon all who were then stockholders. . . . Under the statute the stockholders impliedly agreed that if their subscriptions were in part unpaid when they were needed for creditors, they would pay the balance to the corporation or its legal representative. . . . The members of such corporations, as well as the corporations themselves, are within the jurisdiction of the local court so far as is necessary for the determination of the rights and liabilities of the corporation and its members among themselves. In reference to this kind of liability such decisions and orders are binding on stockholders who ate not before the court otherwise than by virtue of their membership in the corporation." See also Converse v. Ayer, 197 Mass. 443. The District Court of the United States for the District of Connecticut could order the assessment without the presence of or personal service on the stockholders. Bernheimer v. Converse, 206 U.S. 516, 532. Francis v. Hazlett, 192 Mass. 137.
The auditor has found that the common stock held by the defendant is part of the common stock issued to one Mark Gilbert, and then turned back by him to the corporation. The defendant accordingly contends that the stock had been fully paid for when she acquired it. Even assuming that she could thus collaterally attack the decree of the District Court of the United States for the District of Connecticut in Rosoff v. Gilbert Transportation Co. 221 Fed. Rep. 972, wherein the necessity and extent of the assessment were determined, it would not avail her in view of the facts shown by this record. It appears that there was no compliance with the statutory requirements where stock is paid for otherwise than by cash. It further appears that "The options and other things of claimed cash value were never put on the books of the company and never counted into the company's assets in any way. This so called property had no value and was not delivered to the company;" and "The master . . . found that the books of the company showed that no property was in fact delivered to the company in payment for the common stock, and that no common stock was issued because of any property turned over to the company." No evidence to show the contrary was offered by the defendant. It was held in In re Monarch Corporation, 203 Fed. Rep. 664, that under the Connecticut corporation act a stockholder who has received and retained certificates representing full paidup stock in exchange for property, which he has failed to transfer, is liable for the par value of his stock as on an unpaid cash subscription. The law in force as to stockholders' liability when the defendant became a stockholder, and since, as found by the auditor, was the Pub. Sts. of Conn. 1903, c. 194, § 16, which provides that "Every stockholder, whether an original subscriber or not, shall be liable for any balance due on the stock held by him. If a corporation is placed in the hands of a receiver . . . such receiver . . . shall have the powers of the board of directors in calling in instalments on stock." See Stamford Trust Co. v. Yale Towne Manuf. Co. 83 Conn. 43, 51.
2. In Rosoff v. Gilbert Transportation Co. supra, at page 979, the question "whether any stockholder is liable to respond to the assessment because of individual defences" was left to be determined in the suits to collect the assessments. See 221 Fed. Rep. 979. The first personal defence claimed by the defendant, and raised by requests for rulings in the Superior Court, is that of equitable estoppel. It is based on the finding of the auditor that she was deceived in the purchase of the stock by the misrepresentation of the corporation's agent, that the stock was fully paid and non-assessable. It was said by Thomas, J., in the Rosoff case, supra, at page 985, with citation of Connecticut authorities: ". . . under the Connecticut law, while a stockholder is not liable for the debts of the corporation, he is bound to pay the par value for his stock, and any scheme to avoid doing so by agreement with the corporation is ultra vires and void." In New Haven Trust Co. v. Gaffney, 73 Conn. 480, where a life insurance company had issued its stock to the defendant at sixty-five per cent of its face value, and the action was brought by a receiver to recover the balance, it was said by the court (page 485): "The defendant, by taking the shares in question, became, under his contract of membership, liable to pay $100 for each of them. The condition that less was to be accepted, being ultra vires, was void." The same principle seems to have been applied in the case of ordinary corporations since said corporation act of 1903. See Stamford Trust Co. v. Yale Towne Manuf. Co. supra; United German Silver Co. v. Bronson, 92 Conn. 266. See also Mann v. Cooke, 20 Conn. 178; Northrop v. Bushnell, 38 Conn. 498. Whatever remedy the defendant might have had before the appointment of a receiver, we are of opinion that in this action brought by the receiver for the benefit of creditors, to recover the difference between the par value of her stock and what was actually paid to the corporation for it when it was issued, she cannot avoid the liability created by the Connecticut statutes, by setting up the fraud of the corporation. See 7 R. C. L. §§ 341, 393; 5 Ann. Cas. 667 note; 16 Ann. Cas. 178 note.
3. The defendant pleads the statute of limitations. The writ in this case was dated March 3, 1917. The defendant contends that the statute commenced to run when she acquired her stock, July 10, 1908, or at the latest on October 5, 1909, when the receiver was appointed. The plaintiff contends that it did not begin to run until the judgment and order of assessment, March 17, 1915. Under the Massachusetts statute, R. L. c. 202, § 2, which admittedly was applicable, the action must be brought "within six years next after the cause of action accrues."
It was held in Scovill v. Thayer, 105 U.S. 143, that no cause of action accrues in favor of assignees in bankruptcy to recover unpaid subscriptions of stock until a court of competent jurisdiction orders an assessment. It was said by the court (page 156): "Upon the bankruptcy of the company his [the stockholder's] obligation was to pay to the assignees, upon demand, such an amount upon his unpaid stock as would be sufficient, with the other assets of the company, to pay its debts. He was under no obligation to pay any more, and he was under no obligation to pay anything until the amount necessary for him to pay was at least approximately ascertained. Until then his obligation to pay did not become complete. . . . Until these things were done the cause of action against the stockholder did not accrue, although his primary obligation was assumed at the time when be subscribed the stock." In Bernheimer v. Converse, 206 U.S. 516, 534, 535, it was said: "The cause of action did not accrue until the receiver could sue upon the assessment after the stockholder had failed to pay, as required by the order of the Minnesota court." See also Hawkins v. Glenn, 131 U.S. 319; Glenn v. Marbury, 145 U.S. 499; Cumberland Lumber Co. v. Clinton Hill Lumber Manuf. Co. 12 Dick. 627; Lewisohn v. Stod, dard, 78 Conn. 575. The general rule that in cases like this the statute of limitations does not begin to run until after the assessment is ordered, was recognized in Howarth v. Lombard, 175 Mass. 570, 575, and in Francis v. Hazlett, supra. While none of the cases cited involves the statute under consideration some of them were relied upon by the district judge. In Rosoff v. Gilbert Transportation Co. 204 red. Rep. 349, it was said: "In the case of a solvent corporation, while a going concern, the directors, in their discretion, can call in all amounts unpaid on stock subscriptions; but in the case of a bankrupt corporation the trustee can only sue the stockholders for such amounts as have been determined by a preliminary investigation and assessment to be necessary to pay the debts and expenses. . . . But it is at least doubtful in this case whether the valid debts are sufficient to require a call for the entire unpaid subscriptions." And the judge then referred the case to a master to determine the amount necessary to be assessed. The case of Baker v. Atlas Bank, 9 Met. 182, relied upon by the defendant, is distinguishable on the facts. See Commonwealth v. Cochituate Bank, 3 Allen, 42, 47, 50.
We are of opinion that on the facts shown the plaintiff's cause of action did not accrue as early as when the receiver was appointed, namely, October 5, 1909. See 7 R. C. L. 412; 1 L. R. A. (N. S.) 901 note. That is enough to dispose of the defence of the statute of limitations.
We have considered all the questions argued by the defendant. As no reversible error has been shown, the entry must be
Exceptions overruled.