O'Dea

dissenting. — I dissent from the order denying a rehearing of this cause. In my opinion the whole merits of the case are bound up in the question whether it is true, as found by the trial court, that the assets of the old corporation which were transferred to the new corporation in exchange for forty thousand dollars in bonds and 12,250 shares of its stock, were, in fact, or in the honest judgment and estimation of the parties to that transaction, equal in value to the bonds ($40,000) and the par value of the shares ($122,500). If they were of that value, or honestly believed to be of that value, it is not only lawful, but strictly just, to assess the remaining 7750 shares of subscription stock exclusively until they have contributed to the capital of the company as much per share as the 12,250 shares have contributed, viz.: ten dollars a share. In the opinion of the court it is said that the finding on this point is sustained by the evidence. I dissent from that view. I cannot discover in the record any substantial evidence that the assets of the old corporation were actually worth more than forty thousand dollars — • worth, in other words, any more than the value of the bonds…

This action was brought by four stockholders of the defendant corporation against it, and its board of directors, to enjoin the sale by them of 7690 shares of stoek of said corporation, owned by plaintiffs, for a delinquent assessment of four dollars a share levied on said stock.

The corporation was organized October 25, 1899, with a capital stock of two hundred thousand dollars, divided into twenty thousand shares of the par value of ten dollars a share.

All the stock of the corporation was issued. The seven directors of the company subscribed for, and there was issued to them, ten shares each, and the remaining 19,930 shares were issued in two certificates, one certificate numbered 8 being for 7680 shares, and another certificate numbered 9 being for 12.250 shares. Certificate number 8 was issued to F. W. Samuelson individually, and number 9 to F. W. Samuelson, as trustee.

The assessment in question was levied on 7750 shares of the corporate stock, which embraced the 70 shares originally issued to the directors of the corporation, and the 7680 shares issued to Samuelson individually, represented by certificate number 8, and to which particular shares the plaintiffs had…

dissenting. — I dissent. The evidence shows that Samuelson, at the beginning of his cemetery enterprise was. the owner of all the land now belonging to the new corporation, apparently free of all encumbrances, and that through the manipulations of the other parties concerned in the enterprise with him, and without the expenditure of any substantial sum of money or the contribution of any considerable effort or property by any other person, at the close of the proceedings, Samuelson stood as a subscriber for something over 7600 shares of stock in. the new corporation upon which subscription he owed the new corporation the full par value of seventy-six thousand dollars, and that he was not the owner of any other property, while the. other parties who contributed nothing and did nothing substantial, were the owners of all the residue of the stock in the new corporation as full paid stock on which they owed the corporation nothing, their stock being about two thirds of the total capital stock of the new corporation. It also appears, that the new corporation was then the owner of the Samuelson land and of the entire capital stock of the old corporation and by reason of such ownership…