The Toledo chronicle. [volume] (Toledo, Tama County, Iowa) 1873-1924, 1873-07-17

Judge Drummond yesterday rem
dered an important decision, afhrm.
ing the validity Of the assessment
made by the District Court in bank.
ruptcy in the case OF the Great
Western Insurance Company, as
we'll as fixing the liability OF all
stockholders ia the company for the
whole amount Of the unpaid balance
Of their stock.
The case OF Upton, assignee OF the
Great Western Insu' ance Company,
against Laban S. Major, and another
against SIR. Carver, both large stock
holders, were lately tried in the Dis.
,rict Court and verdict and judg.
ment rendered against tho defend
ants. The cases were then taken be.
fore Judge Drummond by writ OF
error. and the decision rendered in
the Majo, case applies TO both.
Judge Drummond says:
This ia an error from the District
Court.
There were three errors relied up.
on in this case by tho plaintiff in or
ror TO reverse the judgment Of the
District Court. The first was, that
there VISA variance between the
proof and the declaration. The sec.
ond was, that the proof showed that
there was an express contract, and
therefore that the plaintiff could not
rely upon an implied contract. The
third was, that before tho District
Court made the assessment on the
subscribers 10 the stock, OF whom
tho defendant in the court below was
one, no notice was given to the sub
scribe rs of the intention 10 make that
assessment.
1t was an action by the assignee Of
the Great Western Insurance Com.
pany against the defendant in the
court below, as a subscriber to the
stock OF the company. There is no
controversy but that there was va
rance between the proof and the first
count OF declaration; the first count
setting ont special contract and the
proof showing that there was dit.
ferent contract from that which was
set forth in the first count. But the
other counts in tho declaration do
not set forth any special agreement
by which the defendant in the court
below became liable as q subscriber
to the stock, but only that he was a
holder OF stock and as such was liable
to pay his subscriptions when called
for, In conformity with certain con
d:tons.
There seems to have been q ms
representation as to the effect OF the
other counts in the lcclaration-,hat
there could be no recovery upot
them unless there was an express con
tract, established OF n particular kind
and that there was an inconsisten
cy between all the counts and III,
evidence showing an express con
tract. That is not the case. Their,
is nothing inconsistent in thes.
counts with an express contract
such MS that winch was established
in cvidcnce-and there can be III
prctcnse that 1t was necessary K
set forth in totidem rerbis, or even b,
legal effect, an express CONTRACT
which might have been entered into
1t was sufficient TO state that by The
fact OF being q subscriber to Il !.
stock a legal lial ,lity arose, and
therefore the point OF where there is
an express contract there can be nc
implied contract is no: necessarily
involved in this view of the case.
The certificate OF stock which III.
evidence showed was given to the
defendant in the court below de-
clared that the balance which was
paid was subject to the call Of the
directors as they might be instructed
by majority of tie stockholders
represented at any regular meeting.
It Is obvious that II the company
went into bankruptcy the letter Of
this condition could not be complied
with. The whole subject was under
the control OF tho bankrupt court.
The defendant, as q stakeholder Of
the company, was in certain sense
= party - the proceedings IN the
bankrupt conrt-was subject to this
order-and there can be no doubt
that the requisltion Of the bankrupt
court upon the stockholders to pay
all their unpaid subscriptions was
entirely valid, and that no question
could be made about it on the trial
of this case
There is nothing IN the case OF
Upton VS.. Carver different from
this case which requires any special