State v. Merchants Bank

CANTY, J.

This is an action, under G-. S. 1894, c. 76, to wind up an insolvent corporation. A supplemental complaint was filed to enforce the *176 stockholders’ superadded liability, and 258 creditors, including this appellant, intervened and set up their claims. The case was partly tried, and adjourned to a later day. In the meantime the other 257 creditors entered into an agreement with the stockholders who were made defendants, by which it was agreed that judgment might be entered in favor of said other 257 creditors and against said stockholders for the full amount of their double liability, and that the judgments so entered should be satisfied on the payment of certain specified amounts, being in the aggregate 60 per cent, of the amounts of the judgment so to be entered. This appellant was not a party to that agreement. The court subsequently made its findings of fact and conclusions of law, in which it found the amount due each of the 258 creditors, recited said agreement, and ordered judgment pursuant thereto. From the judgment entered thereon this appeal is taken, and it is contended that the judgment is not supported by the findings of fact.

It appears by the findings that the amount of indebtedness is much more than such 60 per cent, will pay, but nevertheless the judgment provides that the amount so adjudged against each stockholder shall be-satisfied on payment of the amount which the agreement stipulates he may pay in satisfaction of the same as aforesaid. It is further adjudged that, after paying the expenses of administration out of the sums so paid in, the balance shall be distributed ratably among all of the 258 creditors.

While the agreement is binding on all the creditors who entered into it, it is not binding on this appellant, who is not a party to it. As to her the judgment is erroneous.

Some of the creditors gave a bond to indemnify the stockholder defendants against the claim of this appellant.

We will not prescribe the modification to be made to the judgment, but will remand the case to the court below, with directions to modify the judgment in accordance with this opinion, after notice to the parties. It is so ordered.