STOCKHOLDERS' LIABILITY FOR CORPORATE DEBTS
553
obligation, being purely statutory, is there it must be only as the one expressly given fore quasi contractual.1 the right by statute that the creditor sues.1 The most difficult case having been ex The Supreme Court of the United States, plained the others ought to be easy. Where, however, seems to be in the unique position by statute, the creditor must recover judg of holding the direct liability to be contrac ment against the corporation, have execu tual, and the indirect one to be quasi con tion returned nulla bona, etc., before suing tractual.2 the stockholder, or must perform some We are now ready to consider the applica other condition precedent, the suit in equity, tion of statutes of limitation to the kinds or the action at law which the statute gives of stockholders' liability here considered. him, must surely be one on contract or on Those statutes may be divided into four quasi contract, according to which view classes, (i) those which in express terms you hold of his liability where no conditions fix limitation periods for actions on have to be performed; for, if you hold that such liabilities; (2) those which make no the latter liability is contractual, then it specific mention of actions against stock must be as a statutory beneficiary of the holders, but provide limitation periods contract who has performed all conditions based on common-law forms of action; precedent that the creditor sues, while, if (3) those which make no specific mention you hold that liability to be quasi con of actions against stockholders, but provide tractual, then this liability is the same,2 and limitation periods for "other liabilities" or "liabilities in action"; (4) those which make debts contracted before the repeal of a statute no specific mention of actions against stock imposing double liability, the repeal was uncon holders, but fix limitations for actions on stitutional as impairing the obligation of a contract, "contracts" or "contracts express or im the liability seems to have been direct and imme diate, and the case therefore would seem not to plied." Class i presents no particular difficulties apply to a stockholder's liability such as that in McClainc v. Rankin. Compare State of Louisiana except in the case where the bar of the v. New Orleans. 109 U. S. 285;Freeland ^.Williams, statute has fallen as against the stock 131 U. S. 405; Morley v. Lake Shore Ry. Co., 146 holder, but the creditor can still pursue the U.S., 162. 1 Marshall v. Sherman, 148 N. Y. 9; Crippen v. Laighton, 69 N. H. 540; Hancock Nat'l Bank v. Farnum, 20 R. I. 466; Bullard v. Bell, i Mason (U. S.) 243, 288, 299. See Thornton v. Lane, n Ga., 459, 502; Andrews v. Bacon, 38 Fed. 777. Some cases supported on the contract theory can also be supported on that of quasi contract. A purchaser of corporation bonds gets his as signor's rights against the stockholders, Blakeman v. Benton, 9 Mo. App. 107, but as assignee he is strictly a creditor. So a stockholder's liability survives against his personal representatives; Richmond v. Irons, 121 U. S. 27; Cochran v. Wilchers, 119 N. Y. 399; see Mortimer v. Potter, 213 Ill. 178; but since some quasi contractual liabilities survive against personal representatives, see Concha v. Murrietta, L. R. 40 Ch. D. 543, 553; Pattern v. Brady, 184 U. S. 608, this quasi con tractual liability, if it is such, can, as a matter of statutory construction, be held to survive. 1 Curiously enough, however, the majority of judges in McClaine v. Rankin, 197 U. S. 154, do
not agree. The opinion, while supporting certain earlier cases where the liability was held to be contractual, says that they are to be supported because the stockholder's liability there wa direct and immediate, but that where the liability is secondary and contingent, it is quasi contractual. See Brown v. Eastern Slate Co., 134 Mass. 590, 591; Bank of U. S. v. Dalian, 4 Dana (Ky.), 574. 1 Even when the suit is in equity it is unneces sary and therefore wrong to bring in the dis credited trust fund theory. It is much better to call the whole matter a case of combined judicial and actual legislation, the courts cooperating with the legislature to give to and enforce for the creditor legal rather than equitable rights. See p. 4, note 4, supra, and see an article by George Wharton Pepper in 34 Am. Law. Reg. (n. s.) 448, 459* McClaine v. Rankin, 197 U. S. 154.
