Mills v. Brady

OLNEY, J.

Two actions were brought, one by a plaintiff named Mills, and the other by a plaintiff named Bergman, against a number of persons as defendants. The two actions were consolidated and tried together, and judgment was given in favor of each plaintiff. The defendants appeal. The two actions are identical as to all matters pertinent to our discussion, and we may treat them as a single action.

The complaint alleges that the plaintiff is a judgment creditor of the El Dorado Oil Company, a corporation, and has been unable to collect his judgment on execution, that the defendants respectively were the subscribers, owners, and holders of shares in the company in certain specified amounts, that there had been paid in on the shares of the defendants only fifteen per cent of their par value, and the defendants had agreed with the corporation when they acquired their stock to pay the balance of its par value when legally called on so to do. Upon these facts the complaint asks judgment against each defendant for enough of the amount unpaid upon his stock to satisfy the plaintiff’s judgment against the company.

The answer of the defendants admits the existence of the plaintiff’s judgment, and that the defendants were subscribers, owners, and holders of stock, as alleged in the complaint, but denies that their stock was but partially paid stock or that they had agreed to pay in anything more upon it. It also sets up as a separate defense that their stock was issued in consideration for property transferred to the corporation, which was believed to be of a value equal to the par value of the stock, and that the plaintiff, or rather his assignor,

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for the plaintiff held his judgment by assignment, had been aware of the fact just mentioned when he became a creditor of the company. It will be noted, however, that this so-called separate defense is but the affirmative averment of facts showing the defendants’ stock to be fully paid stock, so that it is really but a denial in another form of the averment of the complaint that the stock was but partially paid.

Upon the issues so made the parties went to trial and, except for immaterial variances, the court found in substance that the averments of the complaint were true and the denials and averments of the answer were not, and, as we have said, gave judgment for the plaintiff.