Opinion
No. 44386.
March 5, 1945.
Fred B. Rhodes, of Washington, D.C., for plaintiff.
J.R. Wilheim, of Washington, D.C., and Francis M. Shea, Asst. Atty. Gen. (George E. Heidlebaugh, of Washington, D.C., on the brief), for defendant.
Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.
Action by Woodbury Granite Company against the United States to recover the increased cost in the performance of subcontract due to enactment of the National Industrial Recovery Act.
Petition dismissed.
This case having been heard by the Court of Claims, the court, upon the stipulation entered into by the parties, makes the following special findings of fact:
1. Plaintiff, Woodbury Granite Co., Inc., was at all times hereinafter mentioned a corporation organized and existing under the laws of the State of Vermont, with its principal place of business at Burlington, Vermont.
2. Prior to June 16, 1933, the United States entered into the following contracts for the construction of post offices:
----------------------------------------------------------- Number of | General contractor | Location of post contract | | office -------------------|---------------------|----------------- T1sa 3463 ........ | McDe Company ..... | Rockland, Mass. T1sa 3628 ........ | Kenny Brothers, .. | Albany, New | Inc. ........... | York T1sa 4114 ........ | V M Construction | | Company ........ | Littleton, N.M. T1sa 4144 ........ | A.J. deKoning .... | Oberlin, Ohio -----------------------------------------------------------
3. Prior to June 16, 1933, plaintiff, as subcontractor, entered into four subcontracts to furnish certain granite stones for the post offices mentioned in the preceding finding. These four subcontracts were made with the respective general contractors who had entered into the aforesaid contracts with the United States to construct the post offices in question.
4. On July 28, 1933, plaintiff signed the President's Reemployment Agreement. In anticipation of this and pursuant thereto, the plaintiff had increased the wages of its employees effective July 24, 1933, on which date it had also reduced the work week from 44 to 40 hours. On September 17, 1933, the work week was further reduced to 35 hours. As a result, plaintiff incurred increased costs in the performance of the aforesaid subcontracts in the amount of $350. Plaintiff hereby waives and abandons any and all other claims heretofore asserted for increased costs incurred by it as a result of the enactment of the National Industrial Recovery Act.
5. Plaintiff has fully performed all of its obligations under the foregoing subcontracts and has been paid the agreed compensation therefor.
6. Under the Act of June 16, 1934, 48 Stat. 974, 41 U.S.C.A. § 28 et seq., plaintiff on December 11, 1934, and within six months after the enactment of said Act, filed claims with the Treasury Department, the department concerned, for increased costs on the subcontracts mentioned in Finding No. 3. Because the supporting data furnished by plaintiff was, on examination, deemed to be insufficient by the Treasury Department, the claims were never transmitted to nor acted upon by the Comptroller General of the United States.
7. On December 15, 1938, plaintiff filed its petition in this court pursuant to the Act of June 25, 1938, 52 Stat. 1197, 41 U.S.C.A. § 28 note. Except as herein stated, no action has been taken on the claims in question by Congress or by any department of the Government and no assignment or transfer of them has been made.
8. On December 16, 1942, plaintiff filed with the Secretary of State for the State of Vermont and with the Commissioner of Taxes for the State of Vermont the sworn statement provided for in Section 1008 of the Public Laws of Vermont (1933), reading as follows:
"We, Joseph T. Smith, President and Warren R. Austin, Jr., Clerk of the Woodbury Granite Co., Inc., a corporation organized and existing under the laws of the State of Vermont and having its principal place of business at Burlington in the County of Chittenden and State of Vermont, hereby certify:
"That the obligations of said Woodbury Granite Co., Inc. to its creditors have been discharged by operation of law or otherwise; that all of the assets of said corporation remaining after the discharge of its obligations to creditors have been apportioned among its stockholders according to their respective rights (no assets remaining for that purpose); that claims or demands do not exist against such corporation; and that such corporation is not the owner of real or personal estate located within this state or elsewhere.
"Dated at Burlington, in the County of Chittenden, this 15th day of December 1942.
"Joseph T. Smith, President. "Warren R. Austin, Jr., "Clerk."
The facts in this case have been stipulated and are adopted by the Court as its special findings of fact.
It appears from the facts that there is due from the defendant $350 representing increased costs of performance due to enactment of the National Industrial Recovery Act, 48 Stat. 195. The right of recovery is statutory, Act of June 25, 1938, 52 Stat. 1197, 41 U.S.C.A. § 28 note.
The sole defense is nul tiel corporation. This issue would ordinarily be raised by a special plea, absent in this case, under the rule that the issue raised by a general traverse admits capacity to sue, United States v. Insurance Companies, 22 Wall. 99, 22 L.Ed. 816, but this has been waived by stipulation.
The petition was filed on December 15, 1938, when the Woodbury Granite Company was still a corporation of the State of Vermont. On December 16, 1942, it filed with the Secretary of State for the State of Vermont and with the Commissioner of Taxes for that State a sworn statement, provided for in Section 1008 of the Public Laws of Vermont (1933), which statement is as follows:
"We, Joseph T. Smith, President, and Warren R. Austin, Jr., Clerk of the Woodbury Granite Co., Inc., a corporation organized and existing under the laws of the State of Vermont and having its principal place of business at Burlington in the County of Chittenden, and State of Vermont, hereby certify:
"That the obligations of said Woodbury Granite Co., Inc. to its creditors have been discharged by operation of law or otherwise; that all of the assets of said corporation remaining after the discharge of its obligations to creditors have been apportioned among its stockholders according to their respective rights (no assets remaining for that purpose); that claims or demands do not exist against such corporation; and that such corporation is not the owner of real or personal estate located within this state or elsewhere.
"Dated at Burlington, in the County of Chittenden, this 15th day of December 1942."
The defendant contends that the Woodbury Granite Company, by virtue of this declaration, and of Section 1009 of the Public Laws of Vermont (1933), is no longer in existence.
Section 1009 reads as follows:
"Sec. 1009. Corporate functions cease. A corporation causing the sworn statement mentioned in the preceding section to be filed with the secretary of state and the commissioner as therein set forth, shall not thereafterwards, in this state or elsewhere, conduct or transact any corporate business, nor possess any corporate functions, except in case proceedings are instituted against such corporation by creditors or stockholders and then only for the purpose of adjusting the rights of such creditors or stockholders; and such corporation and all rights and privileges existing thereunder, except as set forth in this section, shall cease to exist."
The parties hereto are in apparent agreement that the corporation that brought this suit is not now in existence. That conclusion seems inescapable. No survivorship is provided for the purpose of prosecuting suits. Section 1009 says that with the filing of the statement the corporation shall not "possess any corporate functions," with certain exceptions not here relevant.
It was said in Oklahoma Natural Gas Co. v. Oklahoma, 273 U.S. 257, 259, 47 S.Ct. 391, 392, 71 L.Ed. 634: "It is well settled that at common law and in the federal jurisdiction a corporation which has been dissolved is as if it did not exist, and the result of the dissolution cannot be distinguished from the death of a natural person in its effect. * * *"; citing numerous cases.
In the case we have here we might go farther and say that the corporation is not now in existence. Certain it is that a nonexistent person can no more sue than he can be sued. Here there is no entity in whose favor judgment may be rendered. Indeed the attorney for the petitioner is in a situation where his erstwhile principal is dead, so to speak. As was said in Moore's Estate v. United States, 26 Ct.Cl. 254, 255, "* * * if authority to bring a suit be given by the party in interest and remain unexecuted, the power of course will expire with his death." Those entitled to the judgment, if any there be, are not in court in their own proper persons or by attorney.
We know of no case in this court, and none in any other court has been cited, where a corporation, in existence when suit was instituted and going out of existence before judgment and not represented in court by assignee or liquidator, became even nominally a judgment creditor.
The only judgment possible under the circumstances is a judgment of dismissal.
The petition is therefore dismissed. It is so ordered.