Wright v. Lewis

Digges, L, delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Caroline 'County, overruling a demurrer to> the bill of complaint, with leave to- answer. The bill of complaint was filed by the appellees, trustees in bankruptcy, against the appellants and others, subscribers to the capital stock of the Eastern Shore Brokerage and Commission Company, a bankrupt corporation, for the purpose of collecting the unpaid balance on their respective stock subscriptions, for the benefit of creditors of that corporation. Before the filing of the bill of complaint the said corporation had been adjudicated a bankrupt by decree of District Court of the United States for the District of Maryland.

The appellees were appointed trustees by order of that court, were authorized and directed to institute appropriate proceedings against the defendants, and against any and all other person or persons that the trustees might find were in 1 ike position, to- recover their respective unpaid subscriptions to the capital stock of the bankrupt company. Subsequently the appellees filed their original bill of complaint, and upon the sustaining of a demurrer interposed by the appellants, filed their amended bill of complaint, being the one now before us for consideration. -< The appellants demurred to the amended bill, and from the order of the court overruling this demurrer the appeal herein is taken. The reason stated in the demurrer and relied on by the appellants is, “that the plaintiffs have not stated in their bill such a case as entitles them to any relief in equity against these defendants.” The single question for determination, therefore, is: Do the allegations of the bill, which for the purpose of demurrer are ⁷³ admitted to be true, present such a ease as entitles the complainants to equitable relief? Section 77 of article 23 of the Annotated Code of 1924 provides: “Every stockholder of every corporation of this State shall be liable for the benefit of creditors of said con poration for the amount of his subscription to the stock of said corporation, less the amount he shall already have paid thereon, until he shall have paid said subscription, according to the terms thereof, in good faith; and in event of the insolvency of the corporation, such liability shall be considered as an asset of the corporation and may be enforced by the receiver, trustee or other person winding up the affairs of the corporation, notwithstanding any release agreement or arrangement short of actual payment which may have been made between the corporation and said stockholder.

LTothing in this section shall be taken or construed as limiting or affecting the liability of stockholders in banking, safe deposit, trust and loan corporations.” It is contended by the appellants that actual insolvency is contemplated by this section and that to constitute actual insolvency it must be alleged that the tangible assets, plus the unpaid balance on subscriptions to capital stock, are insufficient to pay the debts of the corporation. If such he the law, in a large number of cases, the creditors of a corporation would, be denied the right to proceed against the stockholder for the unpaid balance of their stock subscriptions, even though the tangible property and assets of the corporation be totally insufficient to satisfy the just and legal claims of its creditors. Again, if this contention be sound, it will always be possible. for stockholders who have not fully paid their stock subscriptions to escape all liability under the statute, by dissolving the