Kramer v. Hamsher

Citations

• 63 Pa. Super. 211
• 1916 Pa. Super. LEXIS 139

Syllabus

<p>Corporations — Stock subscription — Suit by receiver — Affidavit of defense — Conditional subscription.</p> <p>In an action by the receiver of a farmers’ produce company to recover on a stock subscription, an affidavit of defense is insufficient which sets up a parol agreement with the company to the effect that all milk furnished to it by the defendant should be paid for at the rate of twenty cents per gallon, and that the company failed to purchase and to pay twenty cents per gallon therefor, without any averment that the company refused to purchase milk offered, or that it purchased milk elsewhere to the detriment of the defendant.</p> <p>Such an agreement also lacks the essentials of a valid contract inasmuch as it is unlimited as to the time of performance and the quantity of the article to be purchased. It is also a secret parol agreement in violation of the rights of creditors as well as co-subscribers who had a right to rely on the subscription contract as written.</p> <p>The order of the court wherein the receiver is appointed is conclusive upon the validity and the amount of the assessment, though it does not touch any defenses that might be made to it.</p> <p>Where the statement of claim avers that all of the stock was subscribed for, and sets out fully the facts relating to the subscriptions, an affidavit of defense is insufficient which avers that all of the stock was not subscribed for by bona fide subscribers, without showing what subscriptions were fraudulent.</p> <p>It is immaterial that the affidavit of defense states that the defendant repudiated the subscription contract when he became aware of the failure of the company to comply with its oral agreement, without any allegation as to whom this repudiation was made, or that it was assented to by the company. If the repudiation was not made until after the incorporation, it was too late because it prejudiced the intervening rights of creditors and other stockholders.</p>