Libby, McNeill & Libby v. Marcel Cafe

HOUSER, J.

Benjamin Fink has appealed to this court from a judgment which was rendered against him in the lower court in an action which here may be considered as having been brought for the sole purpose of recovering a judgment against each of several named defendants on account of his liability as a stockholder in a corporation.

[534]

Regarding the liability of defendant Fink as such stockholder, the complaint in the action contained the following averment:

“That during the times herein mentioned there were

issued

and

outstanding

six' hundred seventy (670) shares of the capital stock of said Marcel Cafe and no more and that the defendant A. E. Brandstatter was on said dates the owner of three hundred (300) shares thereof and that the defendant Benjamin Fink was the owner of three hundred sixty shares (360) shares thereof.”

The point presented by appellant as suggesting a sufficient reason for a reversal of the judgment is that the complaint failed to state a cause of action and that the evidence was insufficient to support the judgment.

From an examination of the record herein it appears that the evidence adduced on the trial of the action clearly established the facts pleaded as hereinbefore set forth, excepting only as to the exact number of shares of stock actually owned by said defendant Fink; and as to which latter fact, the judgment, as rendered, was amply supported by the evidence.

With reference to the point that the complaint failed to state a cause of action, specifically, it is contended by appellant that the allegation contained in the complaint that “there were issued,and

oittstanding

670 shares of the capital stock of said Marcel Cafe and no more”, is insufficient as an allegation as to the number of shares of said corporation which were

subscribed.