Singer, Nimick & Co. v. Given , 4 Colo. L. Rep. 191 ( 1883 )

Day, Ch. J.

1. practice in court^varitionetbo°iate! — I. The petition alleges that the judgment recovered against the Des Moines Plow Company was for the amount of $1,517.23. The judgment introduced in evidence by the plaintiff was for the sum of $1,520.39. The appellant insists that there is a fatal variance between the allegations and proof. No objection seems to have been made to the evidence when offered. If objection had been made, the petition could have been amended so as to avoid the variance. The objection, not having been made at the proper time, is waived. It cannot be urged here for thecfirst time.

2._: ease ma!¿dbeiow!s II. It is claimed that the evidence does not show that the judgment had not been satisfied. The judgment docket was introduced, showing the issuance of an execution and a return of it unsatisfied. ¥e think this was sufficient prima faoie evidence that the judgment was unsatisfied. , Besides, the petition does not allege that the judgment was unsatisfied, and no issue of that kind.was presented in the court below. It seems to have been conceded that the judgment was unsatisfied, and the court so charged the jury. In this state of the record, we would not be justified in reversing, simply because the evidence fails to show the judgment unsatisfied.

tions: exeeution turnof-parol to contradict. III. The execution issued upon the judgment is lost. The plaintiff introduced testimony tending to establish that the return upon the. execution showed that demand was made upon ~W. L. Carpenter, one of the last x A acting officers of the company, and that no property Was foun¿ on which to levy. The defendant introduced W. L. Carpenter and asked him if, at any time prior to the commencement of this suit, anyone having an execution against the Des Moines Plow Company in favor of Singer, Nimick & Co., demanded of him, as an officer of the Plow Company, to turn out property of the company in satisfaction of the judgment. The plaintiff objected to this question, and the objection was sustained. The ruling, we think, was right. ITnder section 1083 of the Code, we think the fact of demand and refusal may be shown by the official return upon the execution. Such return, as between the company and a creditor, must be regarded as conclusive. The defendant might have introduced evidence 'to show that no such return was made, but it was not competent, we think, to dispute the return by showing that, no such demand was made.

^ ¿iiíty °£ stockholders ciebtCs°:runpaid subscription. IY. The defendant was one of the original incorporators of the Des Moines Plow Company, and was elected a member of its first board of directors. The evidence shows that the defendant subscribed for one liundred an<^ ^7 shares of the capital stock, of $50 eajjT ppe defendant insists.that the evidence, without any conflict, shows that the subscription of the defendant was “to be paid in the buildings of Given and Courson.” The plaintiff, upon the contrary, claims that the jury were warranted in finding from the testimony that the subscription of the defendant was unconditional, and that they did so find. We do not deem it necessary to determine this point of controversy between the parties. The evidence shows, without any conflict, and as the defendant concedes, that he subscribed for one hundred and fifty shares, or $7,500 of stock. The defendant by this subscription became liable to pay toward the capital stock of the company, either in money or property, $7,500, and he assumed toward the creditors of the corporation an obligation which can be discharged in no other way than by payment of that sum. See Code, section 1082. The company could not, by any action or arrangement upon its part, release the defendant from this liability. See Burnham v. Ins. Co., 36 Iowa, 632; Osgood v. King, 42 Id., 478. The case of Gelpcke v. Blake, 19 Iowa, 263, relied upon by appellant, does not hold that the company can make arrangements with stockholders to the prejudice of creditors. Now, it appears clearly and without conflict that the defendant has never paid the conditional subscription which he alleges he made. Tie never conveyed to the company the property in which he alleges his subscripfcion was to be paid. It is true, tbe company went into possession of tbe property and occupied it for a time, but without any conveyance, and tbe evidence shows that tbe company afterward surrendered the property to tbe receiver of tbe defendant and bis partner, and canceled tbe defendant’s subscription. If be bad conveyed tbe property, as be alleges be agreed to do, tbe company would bave been, by that much, the more able to pay its creditors. Tbe defendant complains of tbe action of tbe court in giving certain instructions, and in refusing to give instructions asked, and in certain rulings upon tbe evidence. But tbe objections of tbe defendant are mostly based upon tbe ground that defendant is not liable, if bis subscription was payable in tbe buildings and property referred to. In our opinion it is not material, as between tbe defendant and creditors of tbe corporation, in what manner tbe subscription was payable. ' In this view of tbe case, many of tbe objections urged by defendant need not be noticed in detail.

e~ oft Y. The appellant insists that tbe court erred in refusing to allow tbe defendant to prove whether or not the Des Moines Plow Company bad paid him for bis services,, and for tbe use of the property in which be claims tbe subscription was to bave been paid. It is claimed that, if be is liable on bis subscription, be has aright to set off tbe items above referred to. As between himself and tbe company be might bave a right to do so. But we do not think be can do so as against a creditor. No authority is cited by appellant in support of bis position upon this point.

6' : : ment YI. It is insisted that tbe court bad authority simply to award execution against defendant, and could not render a judgment against him. Ye think, however, that section 1084 of tbe Code contemplates tbe rendition of such judgment. See Bayliss v. Swift, 40 Iowa, 648.

In our opinion tbe record discloses no prejudicial errors.

Affirmed.