Chemical National Bank v. Colwell

30 N.E. 644, 132 N.Y. 250, 43 N.Y. St. Rep. 876, 87 Sickels 250, 1892 N.Y. LEXIS 1183

• Court: New York Court of Appeals
• Decided: March 22, 1892
• Status: Published

Opinions

Parker, J.

The debt which lies at the foundation of the judgment under review is alleged by the plaintiff to have been incurred by the “Hew York Lumber Auction Company (Limited),” a corporation organized pursuant to chapter 611 of the Laws of 1875. The corporation has no money with which to pay the obligation, and the assertion of defendant’s liability to respond therefor is based on the default of the corporation in making the annual report required by statute.

The defendant's denial of liability is placed on three grounds:

1. That the note having been made by the corporation payable to its own order, the plaintiff by discounting it for the personal benefit of Jones, a director and secretary and treasurer of the company, became burdened with the necessity of proving that the note was issued for the benefit of the corporation malcing it, Avhicli it failed to do.

2. That the defendant resigned as director November 5, 1885, and before the arrival of the time for making the annual report in respect to Avhicli default Avas made.

3. That before the time came to make the report the defendant had ceased to be a stockholder, and, therefore, by operation of the statute, had ceased to be a director.

As we haA^e reached the conclusion that the last position is well taken and calls for a reversal of the judgment, the other ■questions Avill not be considered.

The corporation Avas created in July,' 1885; the annual report omitted should have been made Avithin twenty days after the 1st day of January, 1886, and the note in suit bears ■date July 2, 1886. The defendant was one of the subscribers to the capital stock of the company, and was elected a director. ■Subsequently he informed Jones, the secretary and treasurer of the corporation, that he Avished to resign all connection with the company, assigning as a reason the duties imposed by the executorship of his father’s estate.

After several conversations of the same general character, and on November 5, 1885, he, accompanied by Ids co-executor, Mr. Milne, Avent to the office of the company, and met Jones, the secretary and treasurer, and a Mr. Atchison, an employe. The defendant asked for his stock and received a certificate for ^eighty shares, Avhicli he indorsed as folloAvs:

“For Aralue received, I hereby sell, transfer and assign to Latimer E. Jones, eighty shares of stock within mentioned, ;and authorize L. E. J ones to make the necessary transfer on the books of the company.

“ Witness my hand and seal this 5tli day of November, 1885.

'“ In presence of A. W. COLWELL.

T. S. Atchison.”

After executing this assignment he gave the stock certificates to Jones, at the same time saying: “How,.Jones, that severs all my connection with the Lumber Auction Company ; I have got nothing further to do with it; you have got father’s stock, he is dead, and that settles that, and I have given you mine, and that clears up all that, and I have nothing further to do with the company.”

Jones accepted the stock and the defendant asked for the transfer-book, but the company did not have one, and he was told that it was not necessary. Some days later a transfer-book was obtained and the stock transferred, but as Jones, at the suggestion of Atchison, issued a new certificate to himself for seventy-five shares,' and to the defendant, but without his knowledge, for the remaining five shares, and a few days later induced him to accept it, hut not with the understanding that he should he a director, we are led to inquire whether the •defendant did not cease to be a stockholder on the fifth of ¡November ?

The importance of that inquiry rests in the requirement of the statute that the directors “ at their election, and throughout their term of office shall be stockholders in such corporation, to at least the extent of five shares.” If then defendant ceased to he a stockholder in the corporation on ¡November fifth, the statute put an end to his official relation with the company. It should he observed that on the occasion of the assignment of the stock to Jones and his acceptance thereof, it was understood to he an absolute disposition of all the defendant’s shares. The subsequent, issue of five shares to him was not in pursuance of any understanding had at the time of such assignment and was done at the instance of Atchison, who made out the certificate and suggested to Jones that he jiersuade Colwell to accept it.

The consideration of - the undisputed testimony to which we have referred is not embarrassed by any question as to the good faith of the defendant or the propriety of Ins action. The corporation was solvent when he sought to terminate his relation with it as a stockholder and director, and the indebted ness which induces this controversy was created months.after-wards. That he intended to make an effectual transfer of his stock is not questioned; nor is it asserted that he omitted to do anything which the situation permitted to effectuate his purpose. The contention is that he did not accomplish his desire because the transfer was not made on the books of the company that day.

He sought to have that done, but it was not, because the company had failed to provide books for the purpose, as provided by its by-laws. It has been frequently held that such provisions are intended solely for the protection of the corporation ; can be waived or asserted at its pleasure; are without effect, except for the protection of the corporation, and do not operate to prevent the passing of the entire title, legal and equitable, in the shares, as between the parties, by the delivery of the certificate, with assignment and power of transfer.. (Isham v. Buckingham, 49 N. Y. 216; Robinson v. National Bank of New Berne, 95 id. 637; McNeil v. Tenth National Bank, 46 id. 331; Leitch v. Wells, 48 id. 585.)

. The plaintiff’s contention then is reduced to the position that notwithstanding the defendant parted with all title, both legal and equitable, in the shares, he still continued to be a stockholder within the meaning of the statute, because through the neglect of the corporation in providing proper transfer-books, the stock wras not formally transferred on its books.

We do not think the statute should receive such a construction. The requirement that a director should have, at his election, and throughout his term of office, at least five shares; manifests that it was the policy of the legislature that the management of the affairs of such corporations should only be committed to those having a personal pecuniary interest in its success or failure, in the conduct of business for which it wras created; otherwise the provision is without reason for its support.

It would seem to follow that as soon as a director parts with all beneficial interest in, and control over, the stock which he is required to hold, and causes the officers of the corporation. to have knowledge of such fact by a request that a proper transfer be made on the books of the company, he no longer possesses the qualifications which the statute declares to be essential.

If the defendant had not been elected a director at the first election, and had simply subscribed for eighty shares of stock, it would hardly be contended that after making the disposition of it, which he did on November fifth, that he would have been eligible to the position of director; nor would there have been any excuse for assuming that he was, for even the books of the company did not show an apparent eligibility : there were no transfer-books, and the only evidence there was on that subject, in the possession of the company, showed that the defendant had parted with all interest in and dominion over the stock for which he had subscribed.

For the same reason, the statute executing itself operated to-divest him of title to the office which he had ceased to be qualified to hold.

In the cases cited by the respondent, the question presented for our determination was neither before the court nor decided, and as they have received consideration by this court in Cutting v. Damerel (88 N. Y. 410), they need not be further alluded to in this connection.

The judgment should be reversed.