400
J'BDERAt Bm'OR'1'EB,
vol. 51.
stockholder not in default until the date when the particular call requires paym:ent to be made. Thus the time when interest becomes chargeable dependent upon a question of fact to be determinedaccorqiQg to the evidence in the case. To determine the time when the calls made upon the capital stock of the National Express & Transportil.tion Company became payable, so a,s to create a default against nonpaying stockholders, it is necessary to know what the provisions :of the charter and by-laws may be upon this subject. If, upon tlie producti.onthereof, it should, appear that they are silent upon the subject, thep, ,under the terms of the calls themselves. it would seem, in the language of the supreme court in Hawkins v. Glenn, '8Upra. that inter,est is from tp,e date of the call. 'The record before us does not conqtinthe complete charter and by-laws of the express company. :Whether the were introduced before the trial court, we do not know The bill of not purport to setforth all the evidence introduced, <m the but, on the contrary,affirms that it contains only a portion thereof. It may well be, therefore. that the charter and by-laws, were i[l, evidence before the' trial. court, ahd that the provisions thereof were such as' to justify the' ruling made on, this question. Whether t1:lere is errol in the ruling depends upon the state of facts made to before that court,and we do not think we are sufficiently advised upon point to authorize us to consider the question. As it does not, 'therefore, affirmatively appear that there was error in the ruling' complained of, the same must be ,affirmed. , ' For the error pointed out in the adnH,ssion of evidence the judgmentii reversed., and the case is remanded to the circuit court for a new trial.
PRIESTtI. GLENN. GLENN tI. PRIEST.
(Clrc'uU Coun oj' Appeals, Eiqhth OircuCt. June 18. 189B.)
Nos. 77, 78. 1. 'CORPORJ.'lIO:tti-i-Ac:mONS J'OR ASSESSMBNTS-EvItn:NoB 01' BbBsOJUPTIOlf. In an Mtjonagainst an alleged stocl!:holder in the" National Express & tatiop CpmpallY "to recover IIoIl assessment on the stock,a contract of SUbscription "'to the stock of the "National Express Company" is admissible to prove the fact of subscription, when it appears that in theprooess of organization there was a change from,the latter tP tlte former namei and th.at defendant was entered on the stock bOoks of'the former as the owner Of certaIn shares, which he afterwards assigned. B.BJ.lI:B-AsSBIiSHBlM'8-LuBILITY OJ' ASSIGNOR OJ' STOOK.
3. S.ure-Lnn'TA'l1:o:/(. , ..' .' T4e a stockholdezr" not lillble to suit for unpaid portions of the capiW stock until an authorized call or asseaament hall been made upon the stock held by
Under Coqe Va. 1860, 18. Q.57, and Code 1878, o. 57, an assignor of in a corporation remailllliable tor the unpaid portions of thestook, though the assig'Iul. ,alsobecomesliable. HamUwnv. Glenn. 9 S. E. Rep. 129, 85 Va. 901; McKimv. ,Gumm.. 8 Atl.Rep. 1llO, 66 lid. and Bambl£um v.o£enn, 20 AtL Rep. 115.7t "Md. 881.':':'fOllQwi!a.
PRmsT
11. GLENN.
401
him applies also to a stockholder who has assigned his stook, and limitation beginl to run 1n his favor, not from the date of the assignment, but from the maturity of the assessment. ... RECORDS AS EVlDBNCB.
A plaintlft ·who uses the record of another court in a different case as evidence I, not bound to introduce the whole record, but only so muoh as sustains the Issues in his behalf; and, if the record oontaios matter of defense, it 18 for defendant to IDtroduce the same.
In Error to the Circuit Court of the United States for the Eastern District of Miasouri. Action by John Glenn, trustee of the National Express & Transportation Company, against John G. Priest, to recover an assessment on the stock of said company. Judgment for plaintiff, allowing interest frolD the commencement of the suit. 47 Fed. Rep. 472. Subsequently a motion fora new trial was denied. 48 Fed. Rep. 19. Both parties bring error. Affirmed. W. H. Olopton, (0. H. Krum, on the brief,) for plaintiff in error, Priest, T.K. Skin'ker, for defendant in error, Glenn. BeforeOALDWELL and SANBORN, Circuit Judges, and SUIRAS, Distriet Judge. SUIRAS, District Judge. This action is another one of the many suits brought by John Glenn; as trustee appointed by the chancery court of the city of Richmond, in a proceeding instituted in that court on be-half of creditors against the National Express & Transportation Company, for the purpose of collecting from the stockholders of 8uch corporation assessments made upon the shares of the capital stock by decrees entered by the Richmond chancery court and the circuit court of Henrico county, Va. For a full statement of the facts connected with the litigation reference may be made to the case of Liggett v. Glenn, 51 Fed. Rep. 381, (decided at the present term of this court.) It may be further stated that, since the preparation of the opinion in that cause, the decision of the supreme court of the United States in Glenn v. Marbury, 12 Sup.· Ct. Rep. 914, has been fumished us in the advance sheets istmed by the clerk, which decision finally settles several of the questions presented by the writs of error in the several cases pending in this court, wherein Glenn, trustee, is a party. By the rulings made by the supreme court in Hawkins v. Glenn, 131 U. S. 319, 9 Sup. Ct. Rep. 739; Gl,en;n v. Liggett, 135 U. S. 533, 10 Sup. Ct. Rep. 867; and Glenn v. Marbury, 145 U. S. 499, 12 Sup. Ct. Rep. 914,-it has been determined that the chancery court of the city of Richmond and the circuit court of Henrico county, Va., had jurisdiction of the creditors' bill filed by W. W. Glenn, a.nd upon his death revived by other parties; that the proceedings had in the United States circuit court for the eastern district of Virginia, in the suit of Reynolda v. Natitm.ul Exp. &: Transp. Co., did not affect the jurisdiction of the .tatecourts above·natned over the case pending before them, nor invali· date the assessments made by said courts on the capital stock of said :corporation;that the stockholders are deemed to be privy to .the prov.51F.no.7-26
40J
.RF.PORTER,vol.
51.
theJ are botlnd oy the decrees orderIng the calls upon the capItal stM){'1 and cannot, in the actions at law brought to enforce payment the vali;dity' b!tOecalls thus that. of ImutatioDS of the state whElremthe begm to run against the rights asserted by the trustee until thecaUsfor the 30 50.l>ercent. assessn1 ynts the capital stock had matured. question presented by the Of arro1"s in thiS: cause is whether the trial court rightly admitted in evidence the stock subs<Ji'iptidu signed by the plaintiff in: errol', which reads'llS follows: "We, the u1\derslgned, t.he amount and the number of shares oppositiH:lur barnes to the stock of the National Express Company." Tije[conteUtioh is;tb8.t thi'sdoes notsbow a subscription to the stock of the National Express & TransportatioilCompany. In the absence of explanatory ev.idence,. sho'Wing the identity of the 'company described under twO: nllmes,tbisobjeetion might be well does not appear that there were but only that in the processdforganization there [was a charigeitt the corporate' name. It also appears that the plaintiff in error was entered on the stock books of the National Express & Transportation Company as the owner of 50 shares in thatoornpany, which he subsequently assigned to other parties. Under thl::Secil'cun1stances) the exception to· the admissibility of the stock subscriptitm merit. ,'i ' urg'Eldis that it was .error to iadmit in ev.idence what purportedrto' beatranscrlpt of proceedings had! in the of the cit1 of Riehrnond in the case of Glenn'a Adm'r v. Ex-preas CO. I because it did, not same contained tne'entire record in that cause. : 'i'AUpll.rts of the prooeedihgs in that case which were essential to support thei.ailuesonbehalf'of the trustee in this cause were included in the tl'8iJ!lscHpt to, and WEl<JllUcon('eive,of no good purpose that would 'have been 8ub!!erved by the'introouctionof wholly irrelevant matter. If there' werepoTtionsof ithe record of value to the defendant below,it WliiJ!Open to him tointr0duce the same; Bind therefore the objection urged to the record introduced\, that it ,was partial only, cannot be sustained, when 'it is:not pointed out that any part of the record omitted was necessary to sustain the issues on behalf of the plaintiff " . \ ,: ; ., below. The claim rnaoe·thatin'this case the defendant bel@wwas entitled to th¢ disposition made be 'informed" by the rebord offeredih e\l'idence by the trtisteeofthenujneys collecteliby him, and touching any compromises made with other stockholdersUt1der the:ll;uthbrity of the courts in' Virginia" does !not founded. are matters under the control ofthe thebtlsiness of winding up the·affahsof the compadYibut:ifthlsobElitlOtithe case, .still these facts are matters of .lit Wl'l.Sl1ot 'incumoent upon the plaintiff below to introduce 'evidence;f;hereon ,even' thtit1gh it might forin part of the caee pending in the Virginia courts. It is nex't claimed1tbat1the·trial·(jourt erred inholding that the statute
of
PRIEST V. GLENN.
403
of limitations oftheetateof Missouri did not begin to run in favor of the defendant below until the date of the assessments made by the chancery court of Richmond and the circuit court of Henrico county, upon the ground that the defendant assigned his stock to other parties in 1886, such assignment being entered upon the books of the corporation, and therefore, as to him, the statute began to run from the date of the assignment, and not from the dates of the decrees ordering the calls upon the stock. It has been settled that, under the provisions of the statute of Virginia, (Code 1860, tit. 18, c. 57, and Code 1873, c. 57,) an assignor of shares in a corporation remains liable for the unpaid portions of the stock assigned, although the assignee becomes also liable. Hamilton v. Glenn,85 Va. 901, 9 S. E. Rep. 129; McKim v. Glenn, 66 Md. 479,8 AU. Rep. 130j Hambleton v. Glenn, 72 Md. 331,20 Atl. Rep. 115. It is likewise settled that a stockholder is not liable to suit for the unpaid portions of the capital stock held by him until an authorized call orasl'leSsment has been made upon the stock. ScotiU v. Thayer, 105 U. 8.143; Hawkinsv. Glenn, 131 U. S. 319, 9 Sup. Ot. Rep. 739. A cause or right of action did not, therefore, arise against the plaintiff in error upon his liability to respond to calls lawfully made for the portions of the stock remaining unpaid when he assigned the same until the 30 and 50 per cent. assessments upon the stock came due under the terms of the decrees authorizing the· same, and, necessarily, the statute of limitations did not begin to run until the right of action had been called into being. Tile fact that the defendant below had assigned his stock does notchanp;6 the rule in this respect. Under the provisions of the statute of Virginia, the assignor remains liable to respond to all lawful calls upon the stock assigned by him. The fact that .he has assigned the same does not, however, create a right of action against him for the unpaid portion of the stock. Neither the corporation, nor a court acting in its place, can call upon him for pay ment, except by virtue of a general asseSFlment made equally upon all the shares of stock. The statute of limitations of' the state of Missouri certainly cannot bar the right of a Virginia corporation to make assessments upon its capital stock, or or a court of Virginia to do so in place of the corporation, when the affairs of the cOlnpanyare being wound up by due process of law. When the cause of action was created against the de:endant by the making the assessment, then, and not till then, the statute of. Missouri began to run in favor of the del{mdant, he being a citizen of that state, as against the cause of action created by the assessment. If the contention of plaintiffin error in this regard were well founded, we would have the anomaly presented of the rights of the corporation und- its creditors being barred by the lapse of time,and yet no legal remedy existing for the erlforcement Of such rights during the time the statlIte was running. In our judgment, the ruling of the trial court, on this as well as the other questions involved in the cause, was correct, and the judgment is thert'fore affirmed: By the'1'fit of error taken by the plaintiff below there is presented th'e question of 'when interest became assessable upon the calls· made
FEDERAL' REPORTER,
upon the stock. The recorddstliesame as that considered ,in: .li1{lgell v. Glenn,151 Fed. Rep. 381, and for the therein stated the judgment of the court below must be sustained. Affirmed..
DORSHEIMER
v.
GLENN.
GLENN V. DORSHEIMER.
(mrcuit Court of .Appeals, Eighth Oircutt. June 18, 1899.) Nos. 79, 80. L ,APPIllAL-HABJlLB8Il,
In an action to recover an assessment on tb.e stookof a corporation, trled to the court a jury, a privileged oommunioation was admitted to prove that the was a The held that he was a stookholder, but the Jindingsof faot showed tha.t this deoision was based upon other-competent evidence. Held, tha.t the admission of the priVileged commumcation was harmless error. Uf1r1Btt v. GLenn, 51 Feil. Rep. 881, ,distinj{uished.
.. CORPORA'llO'lis-AsSESSMBNT ON STOCK-LIMiTATIONS.
Eaoh call lor unpaid subsoriptions to the stock of a OorpoNtion gives rise to a separate of action from the time of default thereun\ler, and a refusal to pay fdr the first call cannot be considered as a denial of liability under all future a oalls, so as to set the statute of limitations running as against them.
In Error to the Circuit Court of the ,United States for the Eastern District of Missouri. Action by John G:lenn, trustee of the National Express & Transportation Company,against Lewis Dorsheimer, to recover an assessment on the capital stock of said company . Judgment for plaintiff allowing interest from the commencement of the suit. 47 Fed. Rep. 472. A motion for a new trial was afterwards denied. 48 Fed. Rep. 19. Both parties bring error. Affirmed. W. H. Clopton, for plaintiff in error, Dorsheimer. T. K. Skinker, for defendant in error, Glenn. Before CALPWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge. SHIRAS, District Judge. Substantially all the questions arlslOg in this case upon the writs of error sued out by both parties have been considered by this court in the cases of Liggett v. Glenn, 51 Fed. Rep. 381, and Priest v. Glenn, Id. 400, (decided at the present term.) On the trial in the circuit court there was introduced in evidence, over objection made, a cOntract entered into between the plaintiff in errQr and his counsel, to the fees to be charged for defending auits brought to enforce calls made upon the capital stock of the National Express & Transportation Company. In Liggeu v. Glenn we Jleld that the admissions contained in this instrument were privileged, being aonfidential communication6 between client and counsel. It was there-