Carter, Rice Co. v. Hano Co. , 72 N.H. 549 ( 1904 )

According to the allegations of the bill, the stockholders are liable for the plaintiffs' debts; and this is a proper form of remedy to enforce the liability. P. S., c. 150, s. 8; ib., c. 151, s. 1; Erickson v. Nesmith,46 N.H. 371. As against the Hano Company and Saunders, at least, the plaintiffs are entitled to the relief prayed for, except perhaps the appointment of a receiver. Rice v. Hosiery Co., 56 N.H. 114, 128. A receiver may be unnecessary if the decree binds these parties only. But if so, the demurrer in behalf of the corporation cannot be sustained merely because the bill contains a superfluous prayer. This disposes of the demurrer so far as it relates to the rights of the party in whose behalf it was nominally filed.

The case may assume a form that will render the prayers for the appointment of a receiver and a determination of the liability of the non-appearing, non-resident stockholders essential to the administration of justice between the plaintiffs and them. The statute provides that when a corporation fails to pay its debt on demand and to expose unincumbered personal property sufficient to satisfy the same, the officers of the corporation "shall forthwith call a meeting of the stockholders to provide means for its payment, by assessment upon themselves or otherwise, within sixty days from the date of the demand." P. S., c. 151, s. 4. This statute is based on the theory that the stockholders will raise by assessment the funds necessary to fulfil their obligations, when their attention is duly called to the necessity. According to the allegations of the bill, there is necessity for an assessment in this case all preliminary steps have been taken to render it the duty of the officers to call a meeting for the purpose, and they have failed to perform the duty. If they are within the jurisdiction of the court, they may be ordered to perform it, as well as be compelled to pay a forfeiture to any person injured. If they are not within the jurisdiction, some one may be appointed by the court to call the meeting. It cannot be assumed that, at a meeting thus called, the stockholders will not attempt to fulfil their obligations. If they do not make an assessment, the court may make it for them. Hawkins v. Glenn, 131 U.S. 319, 329; Howarth v. Lombard, 175 Mass. 570, 578. In either case, if a stockholder fails to pay the assessment, it seems that an action of assumpsit will lie to recover it. Ossipee etc. Co. v. Canney,54 N.H. 295, 318. In such event it may become necessary to have a receiver to aid in making the collection. But as the case now stands, it is unnecessary to further consider these questions. It would be a reproach upon the law if non-residents can avail themselves of the statutes of the state to organize and maintain a corporation, and be exempt from the liabilities which the statutes impose upon them, so long as they keep out of the state. This would be especially true as to non-residents who took part in organizing a voluntary corporation and were signers of the articles of agreement required in such case. P.S., c. 147, s. 2. For them, at least, it would be difficult to show that they had not entered into a contract in this state, having in view the laws of the state regarding its legality, execution, and scope.

Demurrer overruled.

All concurred.