Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/398

 § 393.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VII. Whitman v. Oxford National Bank 1 upon the Kansas statute, Justice Brewer said, giving the opinion of the Federal Supreme Court : " The liability which by the constitution and statutes is thus declared to rest upon the stockholder, though statutory in its origin, is contractual in its nature. It would not be doubted that if the stockholders in this corporation had formed a partnership, the obligations of each partner to the others and to creditors would be contractual, and determined by the gen- eral common law in respect to partnerships. If Kansas had provided for partnerships, with limited liability, and these par- ties, complying with the provisions of the statute, had formed such a partnership, it would also be true that their obligations to one another and to creditors would be contractual, although only in the statute was to be found the authority for the crea- tion of such obligations. And it is none the less so when these same stockholders organized a corporation under a law of Kan- 1 176 U. S. 559. Accord Ferguson v. Sherman, 116 Cal. 169; Aldrich v. Coal Co., 24 Oreg. 32; Bell v. Far- well, 176 111. 489; Hancock Nat. Bank v. Ellis, 172 Mass. 39; Broad- way Nat. Bank v. Baker, 176 U. S. 294; Western Nat. Bank v. Law- rence, 117 Mich. 669; Guerney v. Moore, 131 Mo. 650. Marshall v. Sherman, 148 N. Y. 9, and Crippen v. Leighton, 69 N. H. 540, contra, arose prior to the decision in the Whitman case cited in the text. All of the above cases arose under the Kansas statutes. The Pennsylvania court, under the same Kansas stat- utes, holds that a creditor can sue a shareholder at law in Pennsylvania after a receiver has been appointed in Kansas. Ball v. Anderson, 19(5 Pa. St. 86, overruling Cushing v. Perot, 175 Pa. St. 66. It is the tendency of recent state decisions, upon grounds of comity, to allow receivers of foreign corpo- rations to maintain suits to enforce the statutory liability of resident stockholders. Childs u. Cleaves, 95 378 Me. 498; Tomkins v. Blakely, 70 N. H. 585; Howard v. Angle, 162 N. Y. 179; Howard v. Lombard, 175 Mass. 570. Compare Swing v. Bentley Co., 45 W. Va. 283. But see Wyman v. Eaton, 107 Iowa, 214. The liability of a shareholder in an insolvent foreign corporation for his unpaid subscription may be enforced in an action brought by the receiver of the foreign corporation. Castle- man v. Templeton, 87 Md. 546; Stod- dard v. Lum, 159 N. Y. 265. Upon the general question of enforcing in other states the statutory liability of shareholders in a foreign corpora- tion compare the following earlier cases: Rule v. Omega, 64 Miun. 326; New Haven Horse Nail Co. v. Lin- den, 142 Mass. 349; Flash v. Conn, 109 U. S. 371; Aultman's Appeal, 98 Pa. St. 505; Erickson v. Smith, 4 Allen, 233; Same v. Same, 15 Gray, 221; Smith v. Mutual Life Ins. Co., 14 Allen, 336; Bank of North Amer- ica v. Rindge, 154 Mass. 203; Fowler V. Samson, 146 111. 472; Russell v. Pacific Ry. Co., 113 Cal. 258.