Page:North Dakota Reports (vol. 48).pdf/578

 through the subsequent transaction of business in the ordinary manner, so that, by January 1, 1916, the indebtedness outstanding on April 1 had—been paid, and all that remained to complete the liquidation was to pay. to each stockholder the share of the assets due him. It is then shown that this was in fact subsequently done, though without thought of settlement, through the payment of certain amounts as dividends. These payments, it is said, were in reality payments on liquidation claims. In this way, the Langers received $9,750, or $77.50 more than the liquidating value of their stock, on April 1, 1915. By allowing interest, however, it is conceded that on this basis there was owing to the Langers, on April 20, 1921, $928.94. Additional calculations are made by the defendants based upon a theory that the plaintiffs might be entitled to a share of the profits of the business subsequently conducted on an “investor’s basis.” In arriving at the amount apportionable on this basis, the net earnings, beginning April 1, 1915, are distributed according to the total amount of capital employed in the business—taking credit, however, for the payments actually made on the Langer stock during this period. There would remain due the plaintiffs on this theory $10,731.81. But it is contended that this basis is not equitable to the defendants, as they had assumed the responsibility of management, furnished all the credit and most of the capital with which to produce the earnings. Another contention entering vitally into the judgment is that good will cannot be taken into consideration in estimating or determining the liquidating value of the shares. Without this, it is claimed that no such value as that arrived at by the district court can be supported.

In addition to the contentions of the parties stated above, there are controverted questions relating to the valuation of items in the statement of assets. These contentions involve, principally, the discounting of bills and accounts receivable and the valuation of the real estate. In the brief of the defendants there is considerable argument directed to the capacity in which they were acting after the expiration of the charter. It seems to be the purpose of this argument to demonstrate that during the period following April 1, 1915, the Fargo Mercantile Company was not a corporation de facto. While it is conceded that the directors were trustees under the statute (§ 4567, C. L. 1913), it is contended that they were nevertheless transacting the business as partners; and, being in law, partners, payments made to stockholders must be considered as applied on liquidation claims. Conceding that the Fargo Mercantile