GLENN tI. PRIES':.
19
SAME 11. DORSHEllfER. (CfJrcuft Coure.,E. D. MUBO'lIIIi, E. D. October 7,1891.)
Y. I.
BvmENCB OJ!' FORHBBJUDGMENT-PLUDING-GENBRAL DENIAL.
Under the Missouri Code of Procedure a former judgment of the court lauot. admissible lin evidence under a general denial, but must be specially pleaded. called for. nntil a call is made.
LnuTATION OJ!' ACTIONS-RuNNING OJ!' STATUTE-CALLS POR STOCK SUBSCRIP'1'l:Ol'lS.
Limitli.tlon does not run as against sub8Oriptions of capital stock, payable when
8.
CoRPOltATION8-SunsORIBBR8 )'OR STOCK-LIABILITY J'OR CALLS-ASSIGlOIBlIl'l'O),
STocK. . .Under tbe laws of Virginia. a llubscrlber for the stock of. the NatlonalBxpress & Company is liable for the full par value thereof wtlen called for by the comp8Dl, although he has prevloual1 made a bona &8Ilignment of hia shares.
In Equity. Suit to reClover the second8flsessment npon the stock of the National Express & Transportation Company. As to the suits for the first assessment, see 23 Fed.. Rep. 695, and 24 Fed.·Rep·.536. Oil motion for new trial. For prior report, see 47 Fed. Rep. 472. Overruled. rrhomaa K. Skinker, for plaintiff. W. H. Clopilm, for defendants. THAYER, J. Two questions are presented by the motions t'or new trial whiCfh have been.fUed in .. In the case against Priest as executor of Taylor it.· is insisted that the judgment rendered by this court on March 12, 1884, in the suit to' recover the first assessment on stock, should have .heen admitted in evidence as a bar to the suit .on the second assessment, although it was not specially pleltded.I an examination of the authorities cited, that the positaken is untenable. Before the adoption of the Code of Procedure it was the practice in this state, as well as in many other jurisdictions, to permit a judgment to be given in evidence under the general issue, (Offutt v. John, 8 Mo. 120;) but at the presp-nt time, and since the adoption of the Code, the better orinion is that a judgment cannot be given in evidence, either to support the defense of former recovery or to show that fl given question arising)n a suit has been adjudicated in aprevious suit. between the parties, without being sppcially pleaded. The dif· ference the general.issue at common law and a general denial under the()oJe is well marked, and has been frequently noted. Bliss, Code flo §§ 323, 324. The general. issue was sometimes regarded as tantamount .toa denial of all liability ,and under that plea almost any matter co:uld be given in evidence which to show that the defendant ",as not .iable. On the other hand, the office of a general denial under is merely to put in issue material allegations of fact contained in the petition or complaint, and under tpe latter plea only such matters can be given in evidence as tend to disprove "facts in the complaiI/t. . N&rthrwp v. IrtBUranee 00., 47 Mo. 435; MU88er'1. Adler,86 Mo. ijdhecase last cited 'the court say: " , ·. ,'; .,; J ,',.' ".,' ,
;,.'",'....
20
FEDERAL REPORTER,
vol. 48.
"The general dl'nial puts in issue the facts pleaded in the petition. not the liability. The facts from which the law dr$.Wfl the COllC! usion of non-liability must be pleaded in the answer when they are not stated in the petition."
I do not understand that the decision in Garton v. Botts, 73 Mo. 274, is opposed to the rule. stated in the two cases first cited. The question chiefly mooted in Garton v. Botts was whether a judgment,when offered in evidence without being pleaded, and without being objected to, was conclusive, or was evidence that a jury might, in its discretion, disregard, because it had not been pleaded by way of estoppel. It will also be observed from a careful examination of the case in question that, as the issues were made up. the judgment in all probability was properly admissible in evidence, even if it had been objected to, because it tended to contradict material facts stated in .the petition. My conclusion is .that under the Missouri Code a judgment must be specially pleaded before it can be admitted in evidence, when the purpose of offering it is merely to show that the matter in issue is res judicata. If a judgment in a former Buit' between the parties tends to disprove material facts stated by the plaintiff in his petition, a different rule obtains. But in the present case the judgrrrent offered had no such tendency. It was offered for the purpose of showing that one of the issuMarising in this case had been tried and decided in a previous suit between the parties on a different cause of action, and that the plaintiff waS concluded as to that issue by previous. drcision. The record in question was properly excluded. .' , 2. In the cases of Priest' and Dorsheimer the point is made that, iIias they transferred their stock in the National Express & portation Company many years al1:o, the statute of limitations began to run in their favor from the date of such transfer, and that they cannot be held liable for stock assessments made in 1880 and 1886. With reference to this contention it is sufficient to say that the court understands this question to be in effect settled by the decisions heretofore referred to and cited. Hawkins v,. Glenn, 131 U. S. 319, 9 Sup. Ct. Rep. 739; Glenn v. Liggett, 135 U. S. 533,10 Sup. Ct. Rep. 867,-both decide that statutes of limitation dollot run as against subscriptions to capital stock, payable as or when called for, until a Call is made. It has also been held that under the laws of Virginia a person who subscribed for stock in the National Express & Transportation Company could not divest himself of his liability to pay its full par value when called for by the corporation, even by Do bona fide assignment of his stock on the stockbqoks of the company. MorriBV. Glenn, 87 Ala. 628, 7 South. Rep. 90; B;amQleton v. Glenn, 72 Md. 331, 20 Atl. Rep. 115; Hamilton v. G'enn, 85. Va. 901, 9 S. E. Rep. 129. These decisions, as it appears to me·, place both the assignor and the assignee of stock in precisely the same with respect to stock asseSsments. Both are liable to pay assessments when they are made, until the full par value of the stock has been called in.; and the statute of limitations does not run in favor of either until a call has been made. I have examined the Ca8e of Portsmouth Banking Co., L. R. 2 Eq. 167: to which my attentidnwas called, but it appears to contain nothing in opposition to these vIews. That
JAFFEE V. JACOBSON.
21
was a case fn which the liability of a shareholder for debts contracted by the corporation before and after he ceased to be a stockholder was involved. The principles upon which the decision turned have no appli. cation to the case at bar. Motions overruled.
JAFFEE (C1.rcuft Court
et al. v.
JACOBSON
et al.
0/
Appeals, Ei{Jhth Circuit. Octol>er Term, 1891.)
BPEOIFIO PERFORMANCE-CONTRACTS ENFOROEABLE-FAILUll1l ,Oll'CoNS1DERATIONADOPTION OF CHILDREN. '
AJ:.Ul, for specific performance of a contract alleged that Complainants' nncle, a man large means living in Denver, Colo., being married and childless, expressed a desire to adopt complainants, the two children of his deceased siswr, who were then living with their father in Posen, Prussia, and opened a correllPondence with their guardian expressing this desire and purpose, and asking the guardian to se-" cure ,the< consent of their father that complainants,should be surrendered to him with full dominion and control, as if he were in fact their father; the guardian did open negotiations with the father, who refused to consent unless some pending litigation between him' and complainants in regard to the interastof the latter in their mother's estate ,wasfiTStsettled; ,that thereupon the uncle procured the guardian to settle the s8llle by relinquishing all of complainants' Qlaims, promising that in consideration thereoft and of the father's consent, he WOUld, upon his death, ' leave to complainants one-half of his estate,; that, the settlement l;Ieing completed, the guardian received charge of complainants, and remo-ved them from their father's ,011S,t,Od,'" le.a-vin,g" one of th\IDl with its grandmother i,n anOther ,town, there to remain 'until the grandmother's death, and taking the othllrto his o}v/l homet aU all directed by the uncle in America; that, on hearing of the settlement, the uncle directed: bis brother to proceed from America to bring over the other complainant, ' whom he 'desired as soon as possible to come to DeI;lver; that before bis brother's departure from America the uncle died; ,and that the defendant, his widoW', took possession of, bis entire estate, and refu!!led to recognize complainants' interest therein. Belli, that no case for specific performance was stated, as it was apparent that tbe main consideration for the uncle's agreement was the pleasure and mutual benefits which he expected to result from the establishment of the relation of parent and cbild between himself and complainants as members of his housebold, which' consideration was never realized. ,
of
Appeal from Circuit Court of the United States for the District of Colorado. Suit by ,Regina Jaffee and Helena Jaffee against Annie W. Jacobson and others for the specific performance of a contract made by her husband, Eugene P. Jacobson. Bill dismissed. Affirmed. STATEMENT BY THAYER, J. In this case the circuit court for the district of Colorado sustained a general demurrer both to an original and amended bill ofcomplaint, and subsequently dismissed the cause, complainants having declined to plead further. The substantial averments ,husband of the bin may be stated as follows: Eugene P. Jacobson, ,of Annie W. Jacobson, the appellee, in August, 1878, was a lawyer of large means residing at Denver, Colo. Though married for many years, be was at, the time childlesEl. The complainants, Regina and Helena J"affee,were his nieces, being children ora deceased sister. They were then quite young, and resided at Posen, in the kingdom of Prussia, un<ler the 'care, as it seems, of a guardian by the name of Samuel Bernstein, '" . '
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