Summary
In Hall v. Bliss, 118 Mass. 554, a conveyance by a mortgagee directly to himself under a similar power, which, however, expressly authorized him to purchase, was held to be valid.
Summary of this case from Woonsocket Inst. Sav. v. Am. Worsted Co.Opinion
June Term, 1863
H. C.S. Andrews, for the appellant.
C.F. Sanford, for the respondents.
The section of the statute under which a recovery is sought in this action, is in the following words: "Every such company shall annually, within twenty days from the first day of January, make a report which shall be published in some newspaper, published in the town, city or village, or if there be no newspaper published in said town, city or village, then in some newspaper published nearest the place where the business of said company is carried on, which shall state the amount of capital and the proportion actually paid in, and the amount of its existing debts, which report shall be signed by the president and a majority of the trustees, and shall be verified by the oath of the president or secretary of said company, and filed in the office of the clerk of the county where the business of the company shall be carried on; and if any of said companies shall fail so to do, all the trustees of the company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall be made."
It is insisted by the plaintiffs' counsel, and doubtless correctly, that the legislature, in adopting this section, had in view that provision of the Constitution of 1846, which declares that "dues from corporations shall be secured by such individual liability of the corporators, and other means, as may be prescribed by law." The object of the provision, so far as relates to creditors, or persons dealing with the corporation, appears to have been to give such notoriety to the pecuniary condition of the company, through the publication of its annual statements, as to deprive it of credit, if it should be unworthy of it, and to give to persons to whom it might become indebted while the statement should be withheld, the personal responsibility of the trustees for such indebtedness. So much of that object as looks to the security of the creditor dealing with the corporation whilst it is in default, is accomplished by giving to the creditor the personal responsibility of those who are trustees when his debt is created. The theory of the statute in this respect, and of the present action, is, that the plaintiff, not finding the statement published which would have enabled him to decide whether the corporation was entitled to credit, entered into the contract in reliance upon the personal responsibility of the trustees. Upon that assumption, its reliance must have been upon the trustees who were such when the debt was created, and not upon persons who had ceased to be, or might thereafter become, trustees. The plaintiff cannot claim that it gave credit, under the provisions of the statute in question, to persons who were not trustees when the debt was contracted
The true interpretation of the statute, I think, is, that three circumstances must concur in point of time, to render a trustee liable, viz.: the existence of the debt; the existence of the default in making the report; and the trusteeship. Where these concur, the trustee is liable for all debts, if he was such trustee when the default occurred. If he was not a trustee at the time of the default, but became such afterwards, then his liability is limited to debts created while he remains trustee, and while the default continues. These positions are all substantially embraced in the decisions of this court in the cases of Garrison v. Howe ( 17 N.Y., 458), and Boughton v. Otis (21 id., 261). The plain letter of the statute, as well as its spirit, is against the liability of the defendants in this case. The only material words are "the trustees" shall be liable for the debts "that shall be contracted before such report shall be made." Only those who are trustees when the debts are contracted come within these terms.
The judgment of the Supreme Court should be affirmed.
MARVIN, J., delivered an opinion to the same effect, and all the judges concurred.
Judgment affirmed.