IRVINE v. McKEON, 23 Cal. 472

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. This is an action brought by the plaintiff, as a creditor of a corporation called “ The Murray Creek Quartz Mining Company,” against the defendant as trustee of said company, on the ground that the debts of the company exceeded its capital stock actually paid in. The case was tried by a jury, who found for the defendant, and from the judgment rendered thereon the plaintiff appeals.

This action is founded upon Sec. 14 of the general Corporation Law of April 22d, 1850 (Wood’s Dig. 116), which is as follows: “ The total amount of the debts which any incorporate company shall owe, shall not at any time exceed the amount of the capital stock actually paid in; and in case of any excess, the directors, under whose administration the same may have .happened, except those who may have caused their dissent therefrom to be entered at large on the minutes of the said directors at the time, and except those who were not present when the same did happen, shall, in their individual and private capacities, jointly and severally, be liable for such excess to the said corporation; and in the event of its dissolution, to any of the creditors thereof, to the full amount of such excess, with legal interest from the time such liability accrued; and no statute of limitation shall be a bar to any suit against such directors for-any'siun of money for which they are made hable by this section. |This...st'atute provides for making one person individually liable for the debts of another, and prescribes how and under ;what. circumstances, he shall be held thus hable.

Like other statutes which create a forfeiture or impose a penalty, it is to be strictly construed; and every intendment and presumption is in favor of the defendant in such cases. He is to be held.liable only on full and strict proof of all the facts by the statute made essential to create the liabjjity. The evidence as to the “ amount of capital stock paid in ” was that a quartz mill and lode was put in, worth from $6,000 to $8,000, and that McKeon put in $1,095, and that the debts of the company, when it ceased to do business, amounted to $9,084.

These facts would not be sufficient to show that the debts exceeded the amount of the capital paid in. There is no evidence that this was all the capital stock paid in, and that fact is not to be presumed. But it is urged that as the deed from the former owners of the mill and lode to the corporation expressed a consideration of only twelve dollars, therefore that is to be considered the amount paid in, instead of the real value of the property. We do not agree with the appellant on this point.

The grantors in that deed were the members of the new corporation, and they evidently did not deem it important to insert the full value of the properly as the consideration. The real consideration of a conveyance of property may always be inquired into, and the parties are not estopped by the deed from showing it.

The value of the property thus conveyed was to be deemed as so much “ capital stock actually paid in.” It was necessary for the plaintiff to prove also that these debts were contracted under the administration of the defendant, as one of the directors or trustees of the corporation, and that he was “ present when the same did happenfor “ those who were not present when the same did happen” are expressly excepted from the liability imposed by the statute. In this case, there was no evidence whatever upon this material point. The verdict of the jury was therefore clearly in accordance with the law and evidence.

The judgment is therefore affirmed.