Weber v. Fickey ex rel. Lanahan

Brent, J., delivered the opinion of the Court. The consideration of a demurrer goes back to the first error in the pleadings. This we find in the declaration in this case, which does not disclose a sufficient cause of action to enable this plaintiff to recover. The exhibition of the articles of incorporation shows that he is one of the original corporators, and the holder of stock in the company.

His suit is to recover from another stockholder, to the extent of an unpaid subscription, for a debt alleged to be due from the corporation and is brought under the provisions of the Act of 1872, ch. 325, sec. 59. This section provides that all the stockholders of a corporation shall be severally and individually liable to the creditors of the corporation of which they are stockholders to an amount equal to any unpaid subscription to stock held by them respectively. It cannot be doubted, that if any one stockholder is required under it to pay a debt due by the corporation, that he is entitled to contribution from all the other stockholders whose subscriptions are unpaid. If such stockholder claims to be a creditor, his unpaid stock is liable for the debt, and while he himself is in arrears it would be manifestly unjust that he should be allowed to recover from another stockholder the full extent of his claim.

It is therefore necessary to his recovery against another stockholder, that he should aver the payment of his whole subscription to the stock. If this averment is not made, and proven if put in issue, he cannot maintain his action at law. A stockholder may certainly become a creditor of the corporation, and we can see no reasons why upon proper averments he may not, like any other creditor, proceed to ²⁰⁰ recover his debt. If his declaration discloses, that he is relieved from responsibility as a stockholder by the payment in full for all the stock taken by him, so that,he is discharged from liability to be sued by creditors, or stockholders in a suit between themselves to enforce contribution, the ground of objection to his maintaining the action, because a stockholder, is removed.

Another defect in the declaration is the omission to allege that the defendant was a stockholder at the time the debt sued for was contracted. It is not sufficient' that he should have become one afterwards, or was so, at some time prior to the date of the credit given. He must have been a stockholder at the time, Hager vs. Cleveland & Bassett, 36 Md., 476 , and this is as essential to the right of recovery against him, as the fact that there is an amount of his subscription still unpaid. It is as necessary to aver the one as the other, and the omission of either averment from the declaration is a fatal defect.

In the omission of this averment the declaration must also be held bad upon demurrer. The record discloses that the plaintiff may have a good cause of action upon a proper amendment of his declaration. We shall therefore send the case back for a new trial, so that he may have an opportunity of making the necessary amendments, if he so desires, and of having it tried upon the merits. This renders it necessary that we should express an opinion upon questions now presented in some of the exceptions and by the motion in arrest of judgment, as they may again arise upon a second trial.

We think the defendant is entitled to a bill of particulars, that he might be informed, whether the credits and advances, constituting the debt due by the corporation, were given and made at the time the defendant was a stockholder. The judgment is the evidence of the indebtedness of the corporation, but it does not show when the ²⁰¹ debt was incurred. To meet this requirement, the cause of action upon which the judgment was rendered must be established by proper proof. It is the date of the debt incurred, which is a necessary part of the evidence to fix the liability of the stockholder, and hence the importance of putting before the jury the cause of action upon which the judgment was rendered.

The very purpose of an action like the present is to recover from a stockholder, to an amount not exceeding