Page:North Dakota Reports (vol. 1).pdf/85

transfer, and claiming thereunder, are conclusively held to have assented to the same, and are bound for all the debts and obligations of the late firm. Crawford v. Edwards, 33 Mich. 354. But the court found that the value of the property so transferred was greatly in excess of the debts of the firm; that the franchise alone was worth $35,000 to the owner of the gas-plant—and the plaintiff claims that the corporation is receiving this entire excess of firm assets over liabilities without paying any consideration therefor, and that thereby he, as a member of the copartnership, is being defrauded. The proposition will not bear investigation. All the accumulations of the firm were to be divided among the parties, in proportion to the capital furnished and held by each, on the basis of a capital of $50,000. Plaintiff, if he furnished his capital, would be entitled to one-fifth of the accumulations. If he furnished no capital, he would be entitled to nothing, and could not be defrauded. If he furnished his proportion of capital, he would be entitled to one-fifth of the capital stock; and this proportion could not be affected by the number of stockholders, or amount of capital stock. If plaintiff, as a copartner, should receive from the corporation one-fifth of the excess as above stated, then, as a stockholder, he would be required to pay one-fifth of such excess. His estate would not be affected to the extent of a penny by the transfer. If he takes the stock, he gets the full benefit of the excess in the value of the stock. Counsel contend, however, that, if the obligation did exist to pay in the capital, and if plaintiff failed to do so, still that is a debt to the firm, and that, as between him and the corporation, the plaintiff is entitled to his stock, nothwithstanding. If plaintiff once owed the debt to the firm, he now owes it to the corporation, as the corporation now owns all the effects of the firm; and, as the payment of his proportion of the firm capital was a condition precedent to any right on plaintiff’s part to demand stock, the corporation can properly withhold the stock until such payment is made. As the entire corporate stock was absorbed by the parties who were to furnish the capital of the firm, and as, at the time the corporation was formed, the cost of the works had not equaled the capital stock, the money that had been ad-