Vincent v. Harrison B. & D. Co.

5 Ohio N.P. 273

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: January 31, 1898
• Status: Published

Opinion

SPIEGEL, J.

George Howell, one of the stockholders of the defendant corporation, appears in this case and demands payment in full of the amount paid in by him. to the association. He claims that he was first on the withdrawal list of the company, and at that time there was sufficient money in its treasury to meet this demand. He requests to be paid in full because, if the aforesaid facts are established, he made his demand before the appointment of a receiver, and because said company was and is not insolvent.

Upon the first proposition I do not find from the testimony that preponderance of evidence which is necessary to substantiate his claim. The company is not bound by the secretary’s testimony, especially not as the minutes do not show the keeping of a withdrawal list, and further, because his testimony shows that he accepted notice of withdrawals everywhere, and he must therefore simply rely upon his memory for the correctness of the position of the withdrawals. His memory herein is disputed by the preponderance of the testimony. Further, the petitioner is not entitled to be paid in full. The evidence shows that at the time his withdrawal was filed with the company, the latter, although not insolvent, had sustained large losses by reason of the depreciation of its mortgage securities. Mr. Howell, a member of the company, can not by filing a notice of withdrawal, whether first or last on the list, escape his share of these losses, whether determined then, or later by the company. He has also, by being a party to the action in which a temporary receiver was appointed, contributed to the costs thereof, and must bear his share of that burden.

Geo. B. Goodhart and C. B. Matthews, for plaintiff. M. L. Buchwalter, for defendant.

His petition is therefore dismissed.