{
  "id": 5286786,
  "name": "Charles F. Morse et al. v. The Pacific Railway Company, F. B. Sherwood et al.",
  "name_abbreviation": "Morse v. Pacific Railway Co.",
  "decision_date": "1901-01-15",
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    "judges": [],
    "parties": [
      "Charles F. Morse et al. v. The Pacific Railway Company, F. B. Sherwood et al."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Horton\ndelivered the opinion of the court.\nFor a statement of the general facts in this case, reference is made to the opinion filed herewith in the case of these appellants v. Gillette, ante, page 23. The appellee F. B. Sherwood, contends that he held the stock of the Pacific Railway Co., upon which it is here sought to hold him personally liable, as trustee for his brother, W. W. Sherwood, a resident of California, and that he (the appellee) is therefore not personally liable. That question was referred to a master in chancery \u201cto ascertain and report his conclusions.\u201d The master reported as his conclusion that appellee Sherwood is liable upon said stock in the sum of $10,200. To the master\u2019s report appellees filed exceptions, which were sustained by the court and a final decree entered dismissing said bill as to the appellee Sherwood for want of equity. From the entry of said decree said receiver prayed and perfected this appeal to this court.\nThe appellee Sherwood does not in his exceptions, neither do \u201ethe appellants, in their assignment of errors, make any objection to, or in anywise criticise, the finding of facts reported by the master. We therefore accept such finding of facts as correct, which is, with the conclusions thereon of the master, as follows, viz.:\n\u201c I find from the evidence that on or about October 21, 1889, the Pacific Railway Company issued to the defendant, F. B. Sherwood, one hundred and fifty (150) shards of its capital stock of the par value of $100 a share, as per certificate No. 154 in evidence. That prior thereto, W. W\u201e Sherwood, a resident of the State of California, and a brother of the said F. W. Sherwood, purchased one hundred and fifty (150) shares of the capital stock of the Los Angeles Cable Railway Company of the par value of $100 a share, as per certificate No. 285 in evidence.\n\u201c That said W. W. Sherwood, through his brother, F. 33. Sherwood, borrowed upon said last mentioned stock $4,500 from J. R. Winterbotham. That upon the organization of the Pacific Railway Company, said F. B. Sherwood, under instructions of his brother, W. W. Sherwood, exchanged said Los Angeles Cable Railway stock for said pne hundred and fifty (150) shares of Pacific Railway Company stock, and had said stock issued and delivered to him, the said F. B. Sherwood, by that name, instead of to W. W. Sherwood at the request of the latter, and of said Winterbotham.\n\u201c That said certificate No. 154 was duly assigned to said Winterbotham and held by him until the said loan of $4,500 was paid, when it was returned to the said F. B. Sherwood, who has since retained the same. '\n\u201c That said F. B. Sherwood acted for his said brother in the purchase of the one hundred and fifty (150) shares of stock of the Los Angeles Cable Railway Company.\n\u201c It is contended by F. B. Sherwood that he holds the one hundred and fifty (150) shares of the Pacific Railway Company stock as trustee for his brother, and that he is a trustee within the meaning of section 23, chapter 32 of the statutes in force July 1, 1872, and therefore can not be charged as a stockholder, and has no funds in his hands to be charged with the said liability.\n\u201c My conclusion is, that while it is true from the evidence that as between the said Sherwoods, F. B. Sherwood holds said stock in trust for W. W. Sherwood, yet said stock was not issued to F. B. Sherwood as a trustee, nor impressed with any visible marks of a trust. That he is not a trustee within the meaning or spirit of said section 23 of chapter 32 above referred to. That so far as creditors are concerned he is an absolute stockholder, subject to all liabilities of a stockholder, and can not be permitted to set up a private and secret trust that may exist between him and his brother to defeat his liability as a stockholder in this cause in favor of 'the creditors of said company.\n\u201c I therefore conclude that F. B. Sherwood is liable upon said one hundred and fifty (150) shares of Pacific Railway Company stock in the sum of $68 a share, making his total indebtedness thereon the sum of $10,200.\u201d\nAs stated by counsel for appellees, \u201c the case involves the construction of the statute concerning corporations \u201d (R. S. of Ill., Ch. 32), and especially section 23 of that chapter which relates to exemption from personal liability. Counsel for appellees also states that \u201c there is no other question involved.\u201d We shall consider no other question.\nSaid section 23 is as follows:\n\u201c Ho person holding stock in any corporation, as executor, administrator, conservator, guardian or trustee, and no person holding such stock as collateral security shall be personally subject to any liablility as stockholder of such corporation; but the person pledging such stock shall be considered as holding the same, and shall be liable as a stockholder accordingly, and the estate and funds, in the hands of such executor, administrator,, conservator, guardian or trustee, shall be liable in like manner and to the' same extent as the testator or intestate, or the ward or person interested in such trust fund would have been, if he had been living and had been competent to act, and held the stock in his own name.\u201d\nThere is no question but what the legal title to said stock was in the appellee F. B. Sherwood. The name of W. W. Sherwood does not appear upon the certificate of stock or upon the stock register of the Pacific Railway Company, neither does it appear that that company or its stockholders or creditors had any notice that the appellee Sherwood held or claimed to hold such stock as trustee. Hot only was that stock issued to appellee personally, but so far as appears from the records of said company or of said stock certificate, the same was received, held and owned by the appellee Sherwood in his own right. There was nothing tending to show the contrary.\nThe construction of said section 23 contended for by counsel for appellees is that where \u201c the relation (of trustee) \u201c shall exist in fact \u201d it may be shown by parol evidence, and when shown, the party thus holding the stock shall be exempt from all liability on account thereof.\nThat contention we can not sustain. Certainly the legislature did not intend to aid parties to perpetrate fraud by means of a secret or concealed trust. (We do not intend to intimate, or wish it to be considered, that the court is of opinion that these parties sought to perpetrate a fraud.) It does not necessarily follow that a secret or concealed trust is fraudulent. Counsel, referring to the trust in question, says : \u201c It is a resulting or implied trust, not a secret one.\u201d A resulting or an implied trust may be a \u201c secret \u201d trust in the sense in which we use the word \u201c secret.\u201d\nIn the view we entertain of this case it is not necessary to pass upon the question. of the admissibility of parol proof to show that a trust existed. Such proof was admitted and is considered.\nIt is conceded that at common law a trustee is liable. But it is argued on behalf of appellees that under said section 23 he is not liable.\nAnd counsel for appellee contends that the liability of stockholders in the Pacific Railway Co. is not contractual but statutory. In section 8 of the act (Rev. Stat., Ch. 32) under which said company is organized, it is provided that \u201c each stockholder shall be liable for the debts of the corporation to the extent of the amount that may be unpaid upon the stock held by him.\u201d And in section 25 it is provided that \u201c each stockholder may be required to pay his pro rata, share of such debts or liabilities to the extent of the unpaid portion of his stock after exhausting the assets of such corporation.\u201d \u2022 The liability of the stockholders in said company is, in the opinion of this court, contractual. Hawthorne v. Calef, 2 Wall. 10, 22; Flash v. Conn, 109 U. S. 371, 377; 3 Thomp. on Corp., Secs. 3018, 3193, 3194.\nThe appellee, being the legal holder of the stock referred to, is liable to the creditors of the company, where its assets are exhausted, even though he is not the equitable owner of such stock. Winston v. Dorsett Pipe Co., 129 Ill. 64, 70; 3 Morawetz on Corp., Sec. 853; Nat. Bk. v. Case, 99 U. S. 631.\nSuch a stockholder is not without a remedy. He may recover from the equitable owner such sums as the former may have been required to pay by reason of his being the legal holder of such stock. 1 Cook on Stock and Stockholders, 245-6.\nCounsel for appellees relies mainly upon the case of Burgess v. Seligman, 107 U. S. 20. In that case Burgess, a judgment creditor of the Memphis, etc., R. R. Co., brought suit against the Seligmans to charge them as stockholders in that company under the statute of Missouri. That statute is very similar to the Illinois statute. The records of the railroad company show the following action by the directors, viz:\n\u201c It is ordered by the board of directors that, in making negotiations for money with J. & W. Seligman & Co., certificates for a majority of the capital stock of this company be issued to the said J. & W. Seligman & Co., to hold in trust for the period of twelve months, and that such certificates be signed by the president and secretary, with the corporate seal of this company affixed.\u201d\nIn the stock book and stock transfer book of the railroad company, which the law required to be kept, it was stated that the stock standing in the name of the Seligmans was \u201c held in escrow \u201d by them.\nIt thus appears upon the records and books of the railroad company that the Seligmans were not the owners of the stock of that company held by them, but that it was issued to them as pledgees, or as trustees, to secure the payment of debts of the railroad company. Creditors could not have been misled, or have believed that the Seligmans were personally, and in their own right, stockholders. The language of Mr. Justice Bradley, speaking for the court, must be taken and understood as applying to the facts before that court. He says (p. 27):\n\u201c Upon a careful examination of the facts found in this case, we do not see how a reasonable doubt can exist that the Seligmans held the stock in question as trustees and custodians, by way of collateral security for themselves and the purchasers of the bonds. That was clearly the intent of the parties, declared in almost so many words; and that intent must prevail, unless, by some inadvertence in carrying it out, the Seligmans have been unwittingly caught in some legal snare of which the creditors can take advantage.\u201d\nAppellee Sherwood appears, by the certificate held by him, and upon the books and records of the railway com-party, as being personally, and in his own right, a stockholder in that company. He must be held to be liable as such. 3 Thomp. on Corp., Secs. 3194 and 3197; Stover v. Flack, 30 N. Y. 64; Wells v. Larrabee, 36 Fed. Rep. 868; National Bank v. Case, 99 U. S. 631; Wheelock v. Kost, 77 Ill. 296.\nThe decree fixing the liability of stockholders at $68 per share was entered July 1, 1898, and provides that unless the same is paid within thirty days after the entry of such decree, that interest shall be charged thereon at the rate of five per cent per annum after the expiration of said thirty days, i. <?., from August 1, 1898. We have considered the arguments of counsel upon the question of interest, and are of the \"opinion that it should be allowed as provided by such decree.\nThe judgment of the Circuit Court will be reversed, but as there is no question as to the amount, judgment will be entered in this court for the sum of $10,200, with interest thereon from August 1, 1898, at the rate of five per cent per annum. Beversed, and judgment in this court.",
        "type": "majority",
        "author": "Mr. Justice Horton"
      }
    ],
    "attorneys": [
      "Walker & Payne, attorneys for appellants.",
      "John H. Bradley, attorney for appellees."
    ],
    "corrections": "",
    "head_matter": "Charles F. Morse et al. v. The Pacific Railway Company, F. B. Sherwood et al.\n1. Construction of Statutes\u2014Section S3 of the Act Concerning Corporations.\u2014hi the enactment of section 28 of chapter 32 R. S., entitled \u201cAn act concerning corporations\u201d relating to persons holding stock in corporations, it was not the intention of the\" legislature to enable parties to perpetrate frauds by means of secret or concealed trusts.\n2. Stockholders\u2014When the Liability is Contractual.\u2014Under section 23 of chapter 83, R. S., providing that each stockholder shall be liable for the debts of the corporation to the extent of the amount that may remain unpaid upon his stock, and may be required to pay his pro rata share of the debts of such corporation to the extent of the unpaid portion of his stock, after exhausting the assets of such corporation, the liability of such stockholder is contractual.\n8. Same\u2014Liability and Remedies of.\u2014A legal holder of stock in an . incorporated company is liable to the creditors of the company, where its assets are exhausted, even though he is not the equitable owner of such stock, but he is not without a remedy. He may recover from the equitable owner such sums as he may have been required to pay by reason of his being the legal holder of the stock.\n4. Same\u2014Evidence of the Holding and Liability.\u2014Where a person appears by the certificate held by him and upon the books and records of the company as being personally and in his own right a stockholder in the company, he is to be held liable as such.\n5. Interest\u2014On Money Decrees.\u2014Where a decree for the payment of money provides that unless the same is paid within thirty days after its entry, interest shall be charged thereon after the expiration of such time, the allowance of interest as provided by the decree is proper.\nBill to Enforce the Liability' of Stockholders. \u2014Appeal from the Circuit Court of Cook County; the Hon. Elbridc\u00ae Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.\nReversed and judgment entered in this court.\nOpinion filed January 15, 1901.\nWalker & Payne, attorneys for appellants.\nJohn H. Bradley, attorney for appellees."
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