Page:North Dakota Reports (vol. 48).pdf/386

 the creamery plant;” and that “the treasurer having dissipated, misused, and misapplied this fund without the consent of the stockholders or creditors, is now liable upon an accounting to the receiver who represents both.” (2) That in so far as concerns the $1,739.36 received by the defendant from subscribers after December 21, 1915, the defendant was precluded from giving evidence as to the disbursements thereof made by him, for the reason that no mention was made of the collection and disbursements of such moneys in the itemized account rendered by the defendant to the plaintiff herein.

In our opinion neither of these contentions are tenable. It will be noted that by the terms of the contract between the Hastings Industrial Company and the subscribers it was expressly agreed that the industrial company was to be paid in all $4,000, and that each one of the signers agreed to pay to the Hastings Industrial Company the amount subscribed, and no more. Each of the different subscribers subscribed $100. By the express terms of the contract the Hastings Industrial Company had “the right to first collect from said subscriptions or notes the entire amount due under” the contract, namely, $4,000; and it was only “money, notes or subscriptions remaining after” the Hastings Industrial Company had “been fully paid” that constituted “the property” of the subscribers.

The evidence shows that all moneys received by Hernett from so- called subscriptions, prior to December 21, 1915, amounted to $1,557, and that subsequent to that date he received similar payments amounting to $1,739.36, making an aggregate of $3,296.36 collected on such subscriptions. The undisputed evidence, however, shows that the six persons who signed the notes in favor of the Hastings Industrial Company have paid such notes in full with interest. Manifestly, if the arrangement had not been made between the Hastings Industrial Company and the six persons who signed the three notes and later paid them, all the moneys paid on the so-called subscriptions would have belonged to the Hastings Industrial Company, and not to the Farmers’ Co-operative Company. The Hastings Industrial Company, however, has been paid in full, and has assigned its rights and interests under the contract to the six persons who executed and delivered their notes.to it in full for its claim, and later paid such notes. These persons stand in the shoes of the industrial company, Raich et al. v. Lindebak,. 36 N. D. 133, 140, 141, 161 N. W. 1026. In other words, the moneys collected upon the so-called subscriptions belonged to the assignees of the Hastings Industrial Company, and not to