Weber v. Fickey

Grason, J., delivered the opinion of the Court. This cause was argued and decided at April Term, 1878, and upon motion of the appellee was ordered to be. re-argued on notes, and the case has been again carefully considered. The suit was instituted by the appellee, a stockholder and creditor of the Baltimore County Marble Company of Baltimore County, against the appellant, also a stockholder in the same company, for the recovery, under sec. 52 of Art. 26 of the Code, of the amount of a judgment, which the appellee had recovered against the corporation in the Circuit Court for Baltimore County. The declaration, as originally filed, contained two counts, the second of which was held insufficient on demurrer.

An amended narr. containing a single count was then ⁵¹⁰ filed, to which, there was also a demurrer, which was overruled. The defendant then filed twenty-two pleas, to the fourteenth, fifteenth, twentieth and twenty-second of which the plaintiff demurred, and the demurrer was sustained. During the «progress of the trial nine exceptions were taken hy the defendant, the last of which was to the granting of the appellee’s prayers, and to the rejection of all the prayers offered hy the appellant, except the thirteenth which was conceded, and the sixth and eleventh which were withdrawn. We shall consider, these exceptions in the order in which they were taken; and first the demurrer.

This case was before this Court at the April Term, 1877, when the judgment was reversed because the declaration was defective in not alleging that the plaintiff had fully paid his subscription to ten shares of the capital stock of the corporation held hy him, and further, because it did not charge that the defendant was a stockholder at the time the debt to the plaintiff was incurred hy the corporation. The declaration in this case contains both allegations, and is in all other respects formal and sufficient, and the demurrer was, therefore, properly overruled. The counsel for the appellant admitted, at the argument of this cause, that the demurrer to his fourteenth, fifteenth and twenty-second pleas was .well taken; hut contended that his twentieth plea was good, and that the demurrer to it ought not to have been sustained. The twentieth plea was pleaded as a bar to the action upon the ground as therein alleged, that the appellee as President of the Marble Company did not keep a full, fair and correct account of the transactions of the corporation as required hy the fifth section of the Act, and because the appellee was President during the time the debt was contracted hy the corporation.

Section 5 of the Act of 1868, ch. 471, requires that the President and directors shall keep, “full, fair and correct accounts of their transac ⁵¹¹ tions,” and shall annually prepare “a full and true statement of the affairs of the corporation, which shall he certified to hy the President and Secretary, and submitted at the annual meeting of' the stockholders.” Admitting for the sake of the argument, that the failure to comply with the provisions of the fifth section was owing entirely to the conduct of the President of the corporation, the appellee in this case, it could not have the effect of releasing either the corporation, or its stockholders from the liability which the law had imposed upon them, for the debts which it had contracted. The facts stated in the plea may have been literally true, and yet they did not constitute a bar to the plaintiff's recovery. But the plea alleges that the plaintiff refused to keep an account and make the certificate, while the law imposes that duty, not on the plaintiff, hut upon the President and Directors, and without the co-operation of the directors, the President of the corporation had no power or authority to perform either of the duties required hy the fifth section. We are of opinion that the demurrer to the twentieth plea, was, therefore, properly sustained.

The first exception was taken to the refusal of the Superior Court to postpone the trial of the cause, on the ground that thirty days notice had not been given before trial, as provided hy sec. 16 of Art. 5 of the Code. That section relates to cases in which a writ of procedendo is awarded hy the Court of Appeals. Under the eighth rule of that Court, passed under authority given hy the Constitution no procedendo now goes, but when the judgment appealed from is reversed, a new trial is awarded, and the case is sent hack and goes upon the trial docket of the Court below. This case was sent hack under said rule to the Superior Court of Baltimore City, was placed upon the trial docket of that Court, was on the 10th day of September marked ⁵¹² for trial at the regular call of the trial docket, and was reached on the 80th day of November following, and was then called for trial.

This was ample notice to the defendant, and the Court below was right in requiring the trial to be proceeded with. We find no error in the ruling of the Court below in the second exception. The demand for a bill of particulars was made after a former demand had been complied with, which compliance the Court helow decided was a satisfaction of the demand, and after the trial had begun. Even if no former demand had heen made and satisfied, this demand came too late under the rules of that Court.

The third exception was taken to the admission in evidence of the certificate of incorporation. This exception was abandoned at the argument, and we could not notice it further than to say, that the certificate is in conformity with the requirements of the law, and was clearly admissible as evidence. The fourth exception was taken to the admission in evidence of the record of the judgment recovered by the appellee against the Marble Company. The only ground of objection urged against its admissibility is, that the record of the judgment shows that it was recovered by Frederick Fickey, Jr., while the amended narr. in -this case names the plaintiff as Frederick Fickey.

It was contended that this is such a variance as to make the record inadmissible. It is nowhere alleged or proved that there are two persons bearing the name of Frederick Fickey, so that the addition of “Jr.” was necessary to distinguish the one from the other. It has heen held in various cases, that “ Jr.” is no part of a man’s name. We refer only to Headley vs. Shaw, 39 Illinois Reps., 354; State vs. Weave, 38 N. H, 314; Gobb vs. Lucas, 15 Pick., 7 .

The record of the judgment was properly admitted. From what we have said with respect to this exception, it necessarily follows that the first and second prayers of the appellant were rightly refused. The ⁵¹³ appellee then proved that the corporation was in existence on the 11th day of November, 1870, and that he was present and presided; that he kept no record of the proceedings, hut supposed that Miller, the secretary did; had asked Miller for it, who could not find it; had inquired for it, and was told that it was lost. That all the incorporators and stockholders were at the meeting, which was called a few days afterwards, for the purpose of organization, and that Miller was there as secretary.

Miller being then called by the Court, testified that he was not at that meeting, and was not then secretary; that afterwards he was secretary, but that no hooks ever came into his hands, hut that the hooks were kept from him, and was sure they were kept by Fickey. That the hooks contain his, Miller’s writing, hut that he saw no hooks of the organization, and that he did not know of any record. Fickey then testified that he knew of no record of the organization, and did not know that one was kept. Proof was then offered by him that a meeting was called for the purpose of organization and considering Holloway’s proposition, and that Holloway proposed to sell the property, that he, Fickey, was elected President, and was directed to issue 440 shares of full paid up stock, in consideration of Holloway’s assigning all his interest in the quarry in Baltimore County, which was accordingly done.

This proof was objected to as inadmissible, hut the Court overruled the objection, and admitted the evidence, and this ruling forms the subject of the fifth exception. It appears that either no written evidence of organization ever existed, or that if it did, the writing had been lost and could not he found, and in this state of the case, the evidence objected to was clearly admissible, and the ruling of the Court below, on this exception, is affirmed. The appellee further proved that the subscribers to the stock signed no paper; that the stock hook from which the certificates were issued, was ⁵¹⁴ the only writing kept in relation to stock. The hook from which the certificates were issued, was then handed •to the witness, who read from it entries, showing that fifty shares of stock had heen issued to the appellant; and then further testified that said hook showed the number of certificates of shares issued, and to whom ; that the appellant paid five hundred dollars on account of the shares issued to him, that the balance remained unpaid, and payment thereof had heen frequently demanded.

That witness could not say that the appellant was the owner of the stock at the time he was testifying, hut that he was owner all the time the advances were made by the witness. That on January 30th, witness became the owner of ten shares of the stock, which had been issued to Holloway, and then read the entry in the stock hook to show that he had thus become the owner of the ten shares of said stock. The appellant objected to the admission of all said evidence, beginning with the words, “he was owner,” hut the evidence was admitted and he took his sixth exception to this ruling. This evidence was most material to the appellee’s recovery, which depended upon his proving that he was the owner of shares of stock fully paid up at the time he made the advances to the corporation, and also that the appellant at that time was the owner of stock which had not heen fully paid for.

We cannot perceive in what manner these facts could have heen proved, except by the production of the stock hook and the parol evidence offered in connection therewith, we can discover no objection to its admissibility. At the time Holloway offered his property in payment of subscription to stock, and the corporation agreed to take it, it appears from