Ortego v. Nehi Bottling Works , 182 So. 365 ( 1938 )

A rehearing was granted in this case to permit our giving further consideration to the questions: (1) Are the allegations of fact in the petitions of plaintiffs sufficient to disclose that the operations of defendants, Thomas H. Stanley and his wife, Mrs. Bonnie L. Stanley, constituted merely a continuation of the business of the dissolved corporation? and (2) are plaintiffs precluded from proceeding against the corporation's successors because of the fact that their claim is one arising in tort rather than under a contract?

Further study of plaintiffs' allegations, particularly those found in articles 3 and 4 of the second supplemental petition which are quoted in our original opinion, compels a re-instatement of our conclusion that the first question must be answered in the affirmative. The pleadings show that the husband and wife owned all of the issued shares of the corporation, and upon the dissolution they acquired all of its assets and continued the operation of the business. Even if it be assumed that those individuals paid a valuable consideration to the liquidator for the corporation's assets, necessarily that consideration was returned to them because of their being the sole stockholders. The transaction amounted to nothing more than a bookkeeping entry, or, as plaintiffs' counsel state, "taking money out of one pocket and putting it into another".

We are still of the opinion that plaintiffs are entitled to proceed against defendants, the alleged successors of the corporation, notwithstanding the fact that their claim is founded in tort and is unliquidated.

In the case of Wolff v. Shreveport Gas, Electric Light Power Co., 138 La. 743, 70 So. 789, L.R.A. 1916D, 1138, the Supreme Court stated (page 794):

"According to the consensus of judicial opinion in this country, a newly organized corporation is liable for the debts of an old one, to the business and property of which it has succeeded, where it is shown that the succession was the result of a transaction entered into in fraud of the creditors of the old corporation, or that the circumstances attending the creation of the new, and its succession to the business and property of the old, were of such a character as to warrant the finding that the new, is merely a continuation of the old, corporation.

* * * * * * "In the case of a sale, in good faith, of the property and business of a strictly private corporation, duly authorized by its shareholders, to a third person, for an adequate consideration, the property would no doubt pass free of incumbrance, and the creditors would be relegated to the proceeds in the hands of the debtor corporation; but, where the purchaser is a new corporation, composed of the same shareholders as the old, the transaction, in no manner, affects the rights of the creditors of the old corporation, who may proceed for the recovery of the amounts due them against either corporation, or both; andthat, whether the claims be founded in contract or tort, since the real debtor, though represented by two corporations instead of one, remains the same, in contemplation of law." (Italics ours.)

The status of the Stanleys in the instant case, is somewhat similar to that of the new corporation in the Wolff Case. They were the sole stockholders of the alleged tort feasor corporation and succeeded to its business and assets; and by reason thereof they are liable for all debts of the dissolved corporate entity.

Our former judgment appears to be correct, and it is now reinstated and made final.