Rosenheim Shoe Co. v. Horne

Powell, J.

(After stating the foregoing facts.)

1. The defendants moved to dismiss the bill of exceptions because it does not definitely disclose who are parties to it. It recites that it is filed in a case of Joseph Rosenheim Shoe Company against certain persons and a corporation, naming them, and that to the final judgment the plaintiff excepts and tenders the bill of exceptions. These recitals are consistent with the record. The motion to dismiss is overruled. Joiner v. Singletary, 106 Ga. 257 ( 32 S. E. 90 ). .

2. As to whether the present suit was subject to abatement because of the pendency of the prior suit instituted by the trustee in *584 bankruptcy of the corporation on the same alleged cause of action: The right of action declared by the Civil Code (1910), § 2220, is given to the creditors, and not to the corporation, or to any one standing as its representative or successor.in title. In Walters v. Porter, 3 Ga. App. 73 ( 59 S. E. 452 ), this court allowed the receiver appointed in an equitable action against the corporation to maintain a similar action with the consent of and under the direction of the court of his appointment. That decision was based on the theory that the receiver, under .all the circumstances of the ease, not only was clothed with such right to sue as formerly resided in the corporation, but also represented the creditors and was am thorized to sue in their behalf. It was on this second fact, the fact that he had been vested with the right of action normally residing in the creditors, and not the fact that he was also the representative of the corporation, that this court recognized the receiver’s right to bring suit to enforce the liability against the promoters of the corporation. A trustee in bankruptcy, upon his appointment and qualification, succeeds (except in so far as it is otherwise specially provided) to the title to all property of the bankrupt, and becomes authorized to sue and recover, in most eases, where, but for the intervention of the bankruptcy proceedings, the bankrupt could have sued. Still, such title and such authority to sue as the trustee in bankruptcy possesses is only that conferred by the act of Congress. He is, in a sense, a representative of the creditors and of the bankrupt, but is a special, and not a general representative. The extent and limits of his title as to property and as to causes of action are prescribed in § 70 of the bankruptcy act. Neither this nor any other portion of the act transfers to him causes of action accruing personally to the creditors. It is true that by the amendment of June 25, 1910 (31 St. at Large, ch. 412), the trustee is Vested with the same rights as if he were a judgment creditor; but this, as plainly appears from the context, is intended to apply only to cases in which the trustee is suing to recover assets belonging, in law or in equity, to the bankrupt estate, or is defending against the claims of others seeking to take the property from his possession. For unpaid stock subscriptions the corporation would, but for the bankruptcy, have a cause of action. King v. Sullivan, 93 Ga. 621 ( 20 S. E. 76 ). And to enforce that liability the trustee in bankruptcy may sue. Commercial Bank v. Warthen, 119 Ga. 990 *585 ( 47 S. E. 536 ). If, instead of paying the subscriptions in cash, or in property at fair valuation, the stockholders go through the form of satisfying their obligations on their contracts of subscription by paying in property fraudulently overvalued, the law looks upon the subscriptions as still unpaid, and the trustee of the bankrupt corporation may sue to compel the delinquent stockholders to make good that of which the corporation has been deprived through the fraud. Allen v. Grant, 122 Ga. 552 ( 50 S. E. 494 ).

But the liability of the stockholders in each of the cases just men-N tioned is essentially different from the liability imposed by law upon j the persons who undertake to organize a corporation and proceed to S do business before the minimum capital stock is subscribed. When ) •persons in this State apply for a charter for a corporation, and ) state what the capital stock of the corporation is to be, the expres- ) sion “capital stock” means something. It means that the new crea- ) ture of the law is to start out on its business career with assets of / the amount stated. It means that those organizing the corporation, S while desiring to exempt themselves from general individual liability for the liabilities that the corporation may incur, will see that it starts off in life endowed with this amount of money (or the equivalent of money) which is hazarded upon the enterprise. Those who are to deal with the corporation are publicly informed that this impersonal trader starts off with this much capital pledged to its success. Ten per cent, of the amount of the capital stock designated in the charter must be actually paid in before the corporation begins business. Civil Code (1910), § 2823 (3). The other ninety per cent, need not be paid in, provided the corporation holds unpaid stock subscriptions, bona fide taken, for that amount. Bing v. Bank of Kingston, 5 Ga. App. 578 ( 63 S. E. 652 ).

But the subscribers for the stock may be compelled to pay it in, and are individually liable for it whenever the interests of the corporation or of its creditors so require. Civil Code (1910), § 2823 (3). Thus, the amount paid in, or the amount paid in plus the individual liability of bona fide subscribers for the corporate stock, must always amount to as much as the capital which, according to representations made in the application for the charter, is to be employed ; else the persons who, in violation of this promise and duty, organize the company and proceed to transact business in its name do not relieve themselves of personal liability for the debts *586 of the organization. In such cases the liability attaches to the promoters of the enterprise, not in their capacity as stockholders of the corporation, nor by reason of any contract between them and the corporation, but because they have violated the law and have broken a duty to persons dealing with the corporation as if it had been legally organized. The cause of action on this account does not arise in favor of-the corporation, but arises in favor of those who have dealt with the organizers; that is, usually in favor of persons who have extended credit to the corporation on faith of the organizers’ promise and their duty to see that it was endowed with the amount of capital stated in the charter. This cause of action does not pass to the trustee in the event the corporation is declared bankrupt. The plea in abatement setting up the pendency of the suit by the trustee in bankruptcy was properly stricken on demurrer.

3. The next question is whether the trial judge correctly held that the plaintiffs could not recover because their credit man knew at the time the goods were sold that only about ten per cent, of the stated capital had been subscribed for and paid in. From the testimony of this credit man it is not altogether plain that he knew that only this amount had been subscribed, but it is plain that he knew that only this amount had been paid in. ITis' testimony does show, however, that organization was not complete at this time, and that he did not know that the remainder was not to be subscribed or paid in. Now “one extending credit to a corporation can not complain of acts of mismanagement on the part of officers and agents of the corporation prior to the time when the credit was extended.” Commercial Bank v. Warthen, 119 Ga. 990 ( 47 S. E. 536 ). How far does this principle apply here? This transaction took place before the corporation formally began business, but was ratified by the corporation afterwards; for it took the goods and made payments on the account. The law does not require any part of the capital stock to be paid in until the corporation begins business; but prior to formal organization, while the necessary stock subscriptions are being obtained and other preliminaries are being attended to, many things of a provisional nature must often be done; and the law contemplates that they may be done. Bing v. Bank of Kingston, supra.

As to debts incurred by the organizers of the corporation while the affair is in this provisional state, they are liable as partners *587 until the corporation is duly organized and its corporate responsibility is substituted for their prior individual responsibility. In this case the responsibility was never shifted. There was no fraud and no wrong in the situation as it stood when these goods were sold. The time had not arrived when it became requisite that the full amount of the capital' stock should be subscribed. These creditors had the right to act upon the assumption that these organizers would complete the organization as they had declared in the application for charter it would be completed; holding them individually liable in the meantime. What the credit man of the plaintiffs knew in this case charged the plaintiffs with knowledge that the corporation was not then legally organized, but not with notice that’ it would not he. The judge erred in granting nonsuit.

4. As to the point, raised by the defendants, that the liability against persons undertaking to organize a corporation is, by Civil Code (1910), § 2220, to make good “the minimum capital stock,” and that the charter in the present ease set no minimum, and that, therefore, no liability exists: Sometimes an application for charter recites that the capital to be employed shall not be less than so many dollars and not more than so many, or that it shall be so many dollars with a privilege of increase, and in such cases the lowest amount named is the minimum referred to in the code section; but in other cases, as in the one at bar, only one amount is named, and that, as it seems perfectly clear to us, is both minimum and maximum.

The other points made in the record are controlled by the views already set forth, and we need not enlarge upon them.

Judgment on the main bill of exceptions reversed; on the cross-bill affirmed.