Hancock National Bank v. Ellis

44 N.E. 349, 166 Mass. 414, 1896 Mass. LEXIS 154

Opinion

Allen, J.

This case comes up on demurrer to the plaintiff’s declaration. It is averred, in substance, that under the statute of Kansas, as interpreted by the decisions of the Supreme Court of that State, the liability of the defendant as a stockholder is a contractual liability, and arises upon the contract of subscription to the capital stock made by the defendant in becoming a stockholder, and that in subscribing to said stock and becoming a stockholder he thereby guaranteed payment to the creditors of an amount equal to the par value of the stock held and owned by him, which should be payable to the judgment creditors of said corporation who first pursued their remedy under the statute; and that an action to enforce said liability is transitory, and may be brought in any court of general jurisdiction in the State where personal service can be made upon the stockholder.

The liability of the stockholders must be determined according to the law of Kansas. New Haven Horse Nail Co. v. Linden Spring Co. 142 Mass. 349, 353. Halsey v. McLean, 12 Allen, 438, 441. Flash v. Conn, 109 U. S. 371. We now have a case where the declaration, as we interpret it, sets forth that according to the law of Kansas the defendant is liable to a judgment creditor of the corporation as upon a contract, which is suable anywhere. The facts alleged in this respect are different from those in any case heretofore presented to this court, (see Bank of North America v. Rindge, 154 Mass. 203,) and the alleged liability of stockholders is of a different character from that which exists in this Commonwealth. We are, however, to adopt the construction which is given in Kansas to the liability and undertaking of stockholders in Kansas corporations, and to give force and effect to the same as there established. Accordingly, jurisdiction exists here to enforce the liability like other debts, if the law of Kansas is accurately stated in the declaration. On the demurrer we can only look at the averments of the declaration. We cannot take judicial notice of the statutes of Kansas, or of their interpretation by the courts of that State. At this stage, we simply look at the case as the plaintiff presents it.

The fact that the corporation is in the hands of receivers is immaterial, because, under the averments of the declaration, the liability of the defendant is directly to creditors, and the receivers could not enforce it. Barre National Bank v. Hingham Manuf. Co. 127 Mass. 563, 567. Cook, Stock & Stockholders, § 218, and cases there cited.

The averments are sufficient to set forth that the defendant is such a stockholder as by the law of Kansas would be liable to the plaintiff. Judgment reversed. Demurrer overruled.