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deposit,80 in the case of a guaranty by the corporation, at the date of the making of the contract of guaranty,81 in the case of advancements to the corporation, at the dates when such advancements are respectively made,82 in the case of a judgment against the corporation for a tort, at the date when the tort is committed,83 and in the case of a payment of a corporate debt by a surety, at the date of such

were rendered rather than when the contract under which the attorney was employed was made. This case was expressly overruled in Coulter Dry Goods Co. v. Wentworth, 171 Cal. 500, 153 Pac. 939, where it was held that liability for goods sold to a corporation attached to those who owned stock at the time when the contract of sale was made rather than to those who owned stock when the goods were delivered, and hence that one who acquired his stock between the date of the making of the contract and the date of delivery was not liable.

In Miller v. Lane, 160 Cal. 90, 116 Pac. 58, it was held that the cause of action to enforce the liability of a California stockholder in a bank under the Colorado statute arose at least when an action was brought in Colorado by creditors to enforce the liability of the stockholders.

In an action in California to enforce the liability of a stockholder in an insolvent Canadian bank, it was held that the liability under the Bank Act of Canada was created at least as early as the insolvency of the bank; and that the statute commenced to run at that time rather than when a call was made, although a call was necessary before an action could be brought. Royal Trust Co. v. MacBean, 168 Cal. 642, 144 Pac. 139. "It may be, said the court, "that no action could be brought in advance of a call, and that the action became barred before the occurrence of the event upon which the right to institute suit depended. But this result, anomalous as it seems, necessarily follows from the language of § 359, con

strued as that section has uniformly been construed by this court."'

As to the application of deposits in a bank to overdrafts and the effect thereof on the running of limitations against the liability of the stockholders of the depositing corporation, see London & S. F. Bank v. Parrott, 125 Cal. 472, 73 Am. St. Rep. 64, 58 Pac. 164.

As to the effect of amendment of the complaint, and whether the amend ment states a new cause of action, see Nellis v. Pacific Bank, 127 Cal. 166, 59 Pac. 830.

80 Gardiner v. Royer, 167 Cal. 238, 139 Pac. 75; Jones v. Goldtree Bros. Co., 142 Cal. 383, 77 Pac. 939; Nellis v. Pacific Bank, 12. Cal. 166, 59 Pac. 830; Wells v. Black, 117 Cal. 157, 37 L. R. A. 619, 59 Am. St. Rep. 162, 48 Pac. 1090.

In Mitchell v. Beckman, 64 Cal. 117, 28 Pac. 110, it was held that where, under the terms of the by-laws of a savings bank, there was no right of action against it for the amount of a deposit until a demand and the presentation of the depositor's book, and no such demand was ever made, the statute commenced to run upon stoppage of payment by the bank, and not until then.

81 First Nat. Bank of Redlands v. Consolidated Lumber Co., 16 Cal. App. 267, 116 Pac. 680.

82 O'Neill v. Quarnstrom, 6 Cal. App. 469, 92 Pac. 391.

83 Liability on a judgment for a tort accrues when the tort is committed, and not at the date of the judgment. In re Putnam, 193 Fed. 464.

payment.84 Suspension of the remedy against the corporation does not suspend the running of the statute in favor of the stockholders.85 Nor can the corporation extend the period of limitations as against the stockholders without direct authority from them by any agreement with the creditor postponing its own liability,86 or changing the form of the indebtedness,87 as by giving a promissory note for the amount of such indebtedness,88 or by the renewal of existing notes,89 or by a

84 Yule v. Bishop, 133 Cal. 574, 62 Pac. 68, 65 Pac. 1094; Ryland v. Commercial & Savings Bank of San Jose, 127 Cal. 525, 59 Pac. 989. And see generally Loewenthal v. Coonan, 135 Cal. 381, 87 Am. St. Rep. 115, 68 Pac. 303, 67 Pac. 324, 1033.

Since the right of action of a surety who has paid the note of a corporation is not upon the note, but is in implied assumpsit for moneys paid out and expended, the liability of the corporation and its stockholders to reimburse him is a new debt which is created when the payment by the surety is made. Yule v. Bishop, 133 Cal. 574, 65 Pac. 1094, 62 Pac. 68.

Where individuals executed notes for advances made to the corporation, to which notes it was not a party, it was held that the execution of renewal notes by the corporation as principal and such individuals as sureties did not create a new liability of the corporation so as to entitle the persons signing as sureties to avail themselves of this rule. O'Neill v. Quarnstrom, 6 Cal. App. 469, 92 Pac. 391.

85 Hyman v. Coleman, 82 Cal. 650, 16 Am. St. Rep. 178, 23 Pac. 62; Young v. Rosenbaum, 39 Cal. 646.

86 Jones v. Goldtree Bros. Co., 142 Cal. 383, 77 Pac. 939; Redington v. Cornwell, 90 Cal. 49, 27 Pac. 40; O'Neill v. Quarnstrom, 6 Cal. App. 469, 92 Pac. 391.

87 A transfer by a bank of money from a depositor's open account to his savings account is merely a change in the character of the indebtedness, and does not stop the running of the statute. Jonesv. Goldtree Bros. Co.,

142 Cal. 383, 77 Pac. 939.

88 London & S. F. Bank v. Parrott, 125 Cal. 472, 73 Am. St. Rep. 64, 58 Pac. 164.

The statute begins to run at least from the date of the execution of the note, and not from the date of its maturity. Ryland v. Commercial & Savings Bank of San Jose, 127 Cal. 525, 59 Pac. 989; Bank of San Luis Obispo v. Pacific Coast S. S. Co., 103 Cal. 595, 37 Pac. 499; Hunt v. Ward, 99 Cal. 612, 37 Am. St. Rep. 87, 34 Pac. 335.

"If the liability of the stockholder be created by the giving of a note by the corporation, the statute commences to run in his favor from the date of its execution and not from its maturity." O'Neill v. Quarnstrom, 6 Cal. App. 469, 92 Pac. 391.

"A note given in renewal or extension of the indebtedness of a corporation cannot operate to renew or extend the liability of the stockholder or prevent the statute of limitations from running against it." O'Neill v. Quarnstrom, 6 Cal. App. 469, 92 Pac.

391.

Where certain individuals executed notes for money advanced for the benefit of the corporation, it was held that the execution of renewal notes, signed by the corporation as principal and such individuals as sureties, did not operate to revive the liability of the stockholders on the original debt, which had become barred, or create a new liability. O'Neill v. Quarnstrom, 6 Cal. App. 469, 92 Pac. 391,

89 Goodall v. Jack, 127 Cal. 258, 59 Pac. 575; Hyman v. Coleman, 82

mutual open account between it and the creditor.90 Nor is the time extended by the recovery of a judgment against the corporation by the creditor.91

§ 4240.

Interruption or tolling of statute. The statute does not run while the bringing of a suit to enforce it is prevented by an injunction,92 nor, in some jurisdictions, where the person against whom the cause of action exists is out of the state.93

When one creditor files a bill on behalf of himself and all other creditors who may come in, the suit is sufficient to stop the running of the statute as against all creditors who may afterwards come in and present their claims, as well as against the creditor instituting the suit.94

The institution of a creditor's suit against numerous stockholders stops the running of the statute against those of the defendants who are not served with process, and they may be brought in by alias

Cal. 650, 16 Am. St. Rep. 178, 23 Pac. 62.

90 Redington v. Cornwell, 90 Cal. 49, 27 Pac. 40. See also Hunt v. Ward, 99 Cal. 612, 37 Am. St. Rep. 87, 34 Pac. 335.

91 Stilphen v. Ware, 45 Cal. 110.

92 Ford v. Chase, 118 N. Y. App. Div. 605, 103 N. Y. Supp. 30, aff'd 189 N. Y. 504, 81 N. E. 1164.

This rule applies only where the restraint is imposed at the instance of the other party, or by the court, in some proceeding to which the debtor is a party. It does not apply so as to prevent the running of the statute against the right of the receiver to sue a particular stockholder, where the injunction was obtained on the application of the receiver himself in a proceeding to which such stockholder was not a party. Lagerman v. Casserly, 107 Minn. 491, 23 L. R. A. (N. S.) 673, 131 Am. St. Rep. 506, 120 N. W. 1086.

93 As to the Kansas statute, see Schwartz v. Loftus, 216 Fed. 320; Anglo-American Land, Mortgage & Agency Co., Ltd. v. Lombard, 132 Fed. 721, certiorari denied 196 U. S. 638,

49 L. Ed. 630 (mem. dec.); Martin v. Wilson, 120 Fed. 202; Sargent v. Stetson, 181 Mass. 371, 63 N. E. 929; Broadway Nat. Bank v. Baker, 176 Mass. 294, 57 N. E. 603; Guilbert v. Kessinger, 173 Mo. App. 680. This provision applies to the personal representative of a deceased stockholder's estate. Schwartz v. Loftus, 216 Fed. 320. Where the defendant pleads the statute, the burden is on the plaintiff to show that he comes within the exception. Crissey v. Morrill, 125 Fed. 878.

The California statute excluding from the statutory period the time during which the defendant is absent from the state does not apply to actions to enforce the statutory liability of stockholders, and hence such time cannot be excluded. King v. Armstrong, 9 Cal. App. 368, 99 Pac. 527.

94 Richmond v. Irons, 121 U. S. 27, 30 L. Ed. 864; King v. Pomeroy, 121 Fed. 287; Fox v. Produce Cold Storage Exchange, 192 Ill. App. 301; Barrick v. Gifford, 47 Ohio St. 180, 21 Am. St. Rep. 798, 24 N. E. 259. See also Brinckerhoff v. Bostwick, 99 N. Y. 185, 1 N. E. 663.

summons and judgment may be rendered against them at any time thereafter, provided the plaintiff is not guilty of laches.95

Where a corporation purchases the property and assumes the liabilities of a partnership, and thereafter sells all its property to another corporation, which in turn assumes all its liabilities, the statute does not begin to run in favor of a stockholder in the latter corporation as against the claim of a creditor of the partnership so long as such creditor is prosecuting, with reasonable diligence, actions to establish the liabilities of the successive purchasers.96

Lapse of time between the entry of an interlocutory and a final judgment against the stockholders will not deprive the court of jurisdiction.97

Statutes in some states provide that if a suit or action is commenced in time and the plaintiff is nonsuited,98 or fails otherwise than on the merits,9 ,99 he may commence a new action within a specified time, although the statute may have run in the meantime.

The tolling of the statute with respect to claims for contribution among stockholders will be considered in a subsequent section.1

§ 4241.

Liability of estates of deceased stockholders. Limitations prescribed by statute with respect to the presentation of claims and suits against the estates of decedents and personal representatives are generally held to apply to a claim against the estate of a deceased stockholder under a statute imposing upon stockholders individual liability for corporate debts. And the same is true of a statute

95 Kingsley v. Clark, 57 Colo. 352, 141 Pac. 464.

96 Walterscheid v. Bowdish, 77 Kan. 665, 96 Pac. 56.

97 Childs v. Blethen, 40 Wash. 340, 82 Pac. 405.

Where, in a suit in equity, the court finds the amount due the several plaintiffs, adjudges that all the defendants are jointly and severally liable, and adjudges each of them to pay a specific amount, and holds the case open for a further decree in the event of any of the defendants failing to pay, an application for such a further decree is not a new cause of action. First Nat. Bank of Omaha v. Cooper, 91 Neb. 624, 136 N. W. 1023.

98 The word "actions" in the Illinois statute to this effect includes suits in equity, and an action at law commenced within one year after the dismissal of a chancery suit, not on the merits, comes within the saving clause, and is not barred. Lamson v. Hutchings, 118 Fed. 321.

99 Harrison v. Remington Paper Co., 140 Fed. 385, 3 L. R. A. (N. S.) 954, 5 Ann. Cas. 314, certiorari denied 199 U. S. 607, 50 L. Ed. 331 (mem. dec.). 1 See § 4266, infra.

2 United States. Butler v. Poole, 44 Fed. 586,

California. Davidson v. Rankin, 34 Cal. 503.

Massachusetts. Coyle v. Taunton

limiting the time within which actions may be brought against the heirs or devisees of a decedent on claims not so presented. But it has been held that the claim of a judgment creditor of a deceased stockholder is not provable in the probate court until it has been reduced. to judgment against the estate and hence does not come within the provisions of the statute of nonclaim. And also that where the liability can be enforced only in a court of equity, the claim need not be presented against the stockholder's estate and is not barred by a failure to so present it.5 Nor need the claim be presented where the liability arose on a debt contracted after the decedent's death." In Mississippi it has been held that a claim based on the statutory liability of stockholders to creditors for the amount of their unpaid subscriptions need not be presented, for the reason that the creditor's right is an original, independent, statutory right, which is not a derivative one coming through the corporation, and does not rest upon the existence of the relation of debtor and creditor between the stockholder and the corporation. The necessity for presenting contingent claims and the time within which they must be presented depends upon the statutes of the various states.8

Safe Deposit & Trust Co., 216 Mass.
156, 103 N. E. 288; Converse v.
Nichols, 202 Mass. 270, 89 N. E. 135;
Stebbins v. Scott, 172 Mass. 362, 52
N. E. 535.

Missouri. Garesche v. Lewis, 15 Mo. App. 565, aff'd 93 Mo. 197, 6 S. W. 54; Larkin v. Willi, 12 Mo. App. 135. Nebraska. Brinkworth v. Hazlett, 64 Neb. 592, 90 N. W. 537.

Rhode Island. Sayles v. Bates, 15 R. I. 342, 5 Atl. 497; New England Commercial Bank v. Newport Steam Factory, 6 R. I. 154, 75 Am. Dec. 688.

3 Hale v. Coffin, 120 Fed. 470, aff'g 114 Fed. 567; Johnson v. Libby, 111 Me. 204, Ann. Cas. 1916 C 681, 88 Atl. 647.

Such a statute applies in a suit in equity in a federal court against a stockholder of a foreign corporation. Hale v. Coffin, 120 Fed. 470, aff'g 114 Fed. 567.

4 Douglass v. Loftus, 85 Kan. 720, L. R. A. 1915 B 797, Ann. Cas. 1913 A 378, 119 Pac. 74.

5 Barton Nat. Bank v. Atkins, 72

Vet. 33, 47 Atl. 176; Gager v. Paul, 111 Wis. 638, 87 N. W. 875.

See also In re Martin's Estate, 56 Minn. 420, 57 N. W. 1065, where it is held that such a claim cannot be presented for allowance in the probate court or enforced by proceedings in that court, and where it is said that its presentation would be a useless and idle ceremony.

6 Miller & Lux v. Katz, 10 Cal. App. 576, 102 Pac. 946.

7 Robinett v. Starling, 72 Miss. 652, 18 So. 421.

8 See Garesche v. Lewis, 15 Mo. App. 565, aff'd 93 Mo. 197, 6 S. W. 54; Larkin v. Willi, 12 Mo. App. 135; Brinkworth v. Hazlett, 64 Neb. 592, 90 N. W. 537.

Where a receiver had been appointed for a Minnesota corporation, and the amount of its debts for which the stockholders were liable had been judicially determined, and an assessment for less than the full liability had been levied, before the death of a stockholder residing in Massachu

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