where she was injured, and found it to be [gence of the plaintiff." Instruction No. 12 one of the protruding copper wires. She ex- is as follows: amined the point, and found that the wires were protruding out from the rubber pipe, and that one point extended out further than the other, and that the wire had been cut on the slant, leaving the point very sharp, and was from one-half to three-quarters of an inch in length.

· Plaintiff testified that she did not know at

"The court instructs the jury that upon the issues of contributory negligence of plaintiff, raised by defendants' answer, the burden of proof is upon the defendants, and by the term 'burden of proof' is meant the greater weight of the credible testimony in the case."

This instruction does not refer the jury

guage has been approved in Sherwood v. Ry., 132 Mo. loc. cit. 343, 33 S. W. 774. See, also, Bradford v. R. R., 136 Mo. App. 705, 119 S. W. 32; Webb v. Baldwin, 165 Mo. App. 240, 147 S. W. 849.

[5] Moreover, defendants' instruction No.

what point nor in what manner the repairs to the pleadings to ascertain the issue of conhad been made until she was injured, nor tributory negligence. It rather gives referhad she been told anything about it by de-ence to the fact that the plea of contributory fendants or any one; that no one had per- negligence is brought into the case by the formed any work about the bathroom since answer of the defendants. It gives a condefendants had repaired this place. Plain- nected sense as to where and how the issue is raised. An instruction in this exact lantiff identified and exhibited to the jury a model which, she said, depicted the condition of the wires as they existed at the time she was injured. Plaintiff testified her hand and arm quickly developed an infection which, even under the care of prompt medical attention, resulted in blood poison and caused plaintiff much suffering and a severe and7 fully covered all matters alleged in the defendants' plea of contributory negligence. permanent injury to her hand and arm. Plaintiff testified that the points of the It charged the jury that if theywires remained protruding until about four "further believe and find from the evidence days after the injury, when plaintiff's son that the twisted wire so extending outward was turned the ends down. Medical diagnosis in plain view and was seen, or in the exercise traced the infection to the puncture at the of ordinary care should have been seen, by point plaintiff insists she was injured. The plaintiff, and that it was likely to injure her, yet, notwithstanding the plaintiff carelessly and injuries are permanent. negligently suffered her hand to come in contact with the end of the twisted wire, and received the injuries complained of, then plaintiff is not entitled to recover."

It was admitted by the son of the defendants who did the repair work that if the points protruded "it was a bad job." Two plumbers, testifying for the defendants, likewise admitted that the points (if left extended) should have been turned down. Defend ants attempted to show that the ends were ants attempted to show that the ends were not left as plaintiff claims, and insisted that plaintiff was guilty of contributory negligence in not looking to see the wires, and that there was no negligence of defendants. The petition, we think, states a cause of action, and the demurrer to same was well ruled. The evidence substantially supported the petition and made a case for the jury.

[2, 3] The defendants as landlord, in the absence of a contract to do so, were under no obligation to make repairs to the rented premises, but, having voluntarily undertaken to do it, are liable for injury to the plaintiff, the tenant, resulting from the negligent manner in which the repairs were made. Finer v. Nichols,, 175 Mo. App. 525, 157 S. W. 1023; Vollrath v. Stevens, 199 Mo. App. 5, 202 S. W. 283.

But the defendants complain that the case was improperly tried, and assign certain alleged errors.

[4] First, it is complained that instruction No. 12, given at the request of the plaintiff, is faulty, in that the jury was referred to the "defendants' answer to ascertain the issues involved as to the contributory negli

The court sifted the pleadings and stated the issue of contributory negligence to the jury in the instructions, and did not require the jury to ascertain the issues from the the jury to ascertain the issues from the pleadings themselves.

It is somewhat difficult to follow the as

signments seriatim and yet keep the analysis of the case in a moderately logical course. Assignments 2, 3, and 6 challenge the correctness of plaintiff's instruction No. 1, which sought to cover the whole case. This instruction is invulnerable. It states the necessary elements and principal features of plaintiff's case and follows the allegations of the petition. Complaint is made that this instruction runs afoul the cases of Vollrath v. Stevens, 199 Mo. App. 5, 202 S. W. 283, and Finer v. Nichols, 175 Mo. App. loc. cit. 537, 157 S. W. 1023. The instruction, when read in the reflection of these cases, appears to be clearly correct. In the Vollrath Case, supra, it was held error to give an instruction in a case similar to the one under consideration, where such instruction submitted to the jury the question of the failure of the defendants to do the repair work, which in that case was a failure to replace certain rotten supports in the flooring of the steps of a house rented; and the court pointed out with clarity that under the law, in the ab

(232 S.W.)

RALEIGH INV. CO. v. CURETON.

(No. 16554.)

$17,572.08. After a nulla bona return was made on an execution issued under said

judgment, plaintiff, after due notice given, filed its motion, as provided for in said section.

(St. Louis Court of Appeals. Missouri. June 7, 1921. Rehearing Denied June 24, 1921.) 1. Corporations 232 (2) Where railroad Said motion is in the usual form, and alstock was issued for rights of way, subscrip- leges that the defendant is the owner of 46 tions, etc., it is not paid unless they were shares of stock of said corporation, of the worth the par value of the stock.

Where a corporation on organization deliv- par value of $100 each, and that 90 per cent. Where a corporation on organization deliv- of the par value of said stock remains unered to one of the promoters shares in payment of rights of way, bonuses, subscriptions to stock, and services, the stock is not paid up unless the matters and things turned over to the corporation were reasonably worth in money the stock's par value.

2. Corporations 244 (5) - One receiving stock with knowledge that it was not fully paid is liable to corporate creditors.

Where corporate stock was not fully paid up, one receiving it with knowledge of that fact takes subject to the implied promise or obligation that he will be liable on the stock for debts of the corporation if it becomes insolvent, to the extent of the difference between the par value and the amount actually paid.

3. Appeal and error 1017-Appellate court should review the evidence and fact findings of referee.

Where the lower court directed a reference, and the referee filed his report, it is the duty of the appellate court, under Rev. St. 1919, § 1444, to review the evidence and fact findings of the referee and give such judgment as shall

be conformable to the law on the evidence.

4. Corporations 269 (3)-Evidence held insufficient to show that defendant took stock with knowledge that it was not fully paid up. In an action under Rev. St. 1919, § 9764, against a transferee of corporate stock which was in fact not fully paid for, evidence held insufficient to show that the transferee knew or was chargeable with knowledge, that the stock was not paid for, and hence was not

liable.

paid; that said defendant purchased said shares with knowledge that only 10 per cent. of the par value thereof had been paid, and prays the court to order an execution to issue against the defendant to collect the sum of $4,140, the alleged balance due on said stock owned by him.

Defendant in his answer admitted that he was a stockholder of said Bismarck-Bellevue Valley & Western Railway Company, and averred that, on the 5th day of April, 1912, one E. E. Evans was the owner of certain shares of the capital stock of said company, and that on said day he purchased from said Evans 15 shares of said capital stock; that he purchased the same under the belief that the same were full-paid, and that the said certificate representing the said 15 shares upon its face stated that the same were fullpaid and nonassessable, and that the defendant had no knowledge or notice of anything to the contrary; that he then believed and still believes that the said shares were fully paid and nonassessable, wherefore he was not liable.

The reply denied the allegation of the new matter made in the return, and for further reply averred that the Bismarck-Bellevue Valley & Western Railway Company was incorporated with a capital stock of 3,000 shares, of the par value of $100 each, to build a proposed railroad from Bismarck, Mo., to Sunlight, Mo.; that, on the 23d day of

Appeal from St. Louis Circuit Court; Karl March, 1912, a board of directors met and Kimmel, Judge.

"Not to be officially published." Action by the Raleigh Investment Company, a corporation, against P. H. Cureton. A judgment for plaintiff on return nulla bona to execution against a corporation of which defendant was stockholder, and defendant appeals. Reversed and remanded, with directions to enter judgment for defendant.

elected one E. E. Evans president of said corporation; that said E. E. Evans, together with the directors of said company, prior to the 23d day of March, 1912, had formed a syndicate to promote said corporation, and each of said directors had put up from time to time about $250 in the promotion of said corporation; that said E. E. Evans had further put in means of his own amounting to about $1,750, in addition to the $250 aforesaid, and money borrowed by him amounting to about $2,500; which sums, amounting in all to about $7,000, had been used in making surveys, procuring charter, and and getting agreements for right of way and deeds for BRUERE, C. This suit is brought under rights of way for said Bismarck-Bellevue section 9764, Revised Statutes of Missouri Valley & Western Railway Company; and 1919. Plaintiff is a judgment creditor of the that the total amount of all payments made Bismarck-Bellevue Valley & Western Rail- by said syndicate and all voluntary contribuway Company, a corporation, to the extent of tions made and services rendered to said For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Jesse McDonald, George B. Webster, and Arnold Just, all of St. Louis, for appellant. John A. Gilliam, of St. Louis, for respondent.

(232 S.W.)

railway company did not exceed $8,000 up to, amounting to $4,268.18. From this judgment and including April 1, 1912. defendant appealed.

The evidence showed that at the time plaintiff's motion was filed the defendant owned 46 shares of stock of the BismarckBellevue Valley & Western Railway Company; E. E. Evans was the original holder of these shares, and sold them to the defendant for $10 a share.

The reply further averred that on March 23, 1912, under an order made by the board of directors of said corporation, of which E. E. Evans was president, the said corporation purchased the right of way, contracts, field notes, and all property pertaining to the proposed road between Bismarck and Sunlight from E. E. Evans, and agreed to pay said The facts with reference to the issue of Evans for same, and in satisfaction of mon- said stock to E. E. Evans are as follows: eys advanced by him for organization ex- The Bismarck-Bellevue Valley & Western penses, the sum of $102,000, to be paid $2,000 Railway Company was incorporated March cash and $100,000 in common stock of the 19, 1912. In January, 1911, Mr. Evans, who company; that in pursuance of said agree- was a government clerk located at St. Louis, ment said corporation, on said day, issued to Mo., and as such was earning a salary of E. E. Evans a certificate of stock for 1,000 $900 a year, began the promotion of a railshares of common stock in said corporation, road commencing at Bismarck, Mo., and runpurporting to be of the value of $100 per ning west across the southern part of Washshare; that said Evans' subscription, there-ington county. From the 26th day of Janutofore made, of 280 shares of stock in said ary, 1911, until the 19th day of March, 1912, corporation, was credited as paid by said he spent the major portion of his time in said 1,000 shares, and each subscription for two promotion, but still retained his position in shares, which had been made by each of said the government service. He had some predirectors, was offset against the $2,000 cash liminary surveys of the road made, for which voted to said Evans; that no money was he paid about $4,000 of his own money. On paid to Evans at the time, and that no mon- March 19, 1912, Mr. Evans and others filed ey was paid into the treasury of the corpora- articles of incorporation of the Bismarcktion for any of said stock; that the entire Bellevue Valley & Western Railway Compaconsideration for said 1,000 shares of stock ny with the secretary of state of this state. and said $2,000 so voted, paid in money and A certificate of incorporation was issued to labor to said company, in services, contracts said company on said date. The purpose for for right of way, property, surveys, charter which the corporation was formed was to and legal expenses, did not exceed in value construct a railroad from Bismarck, in St. the sum of $8,000; that there was paid on Francis county, Mo., to Sunlight, in Washingthe 1,000 shares taken by said Evans a sum ton County, Mo. The amount of the capital not to exceed $6,000, and that about $94 per stock of the corporation was $300,000, divided share was unpaid thereon. into 3,000 shares, of the par value of $100 each. Three hundred shares of the stock of said corporation were subscribed for, of which E. E. Evans subscribed 280 shares.

The reply further alleged that the defendant, on April 27, 1912, received from E. E. Evans 46 shares of stock, which was part of 1,000 shares of stock issued to E. E. Evans as aforesaid; that defendant knew the facts in regard to the issue of said stock to E. E. Evans, or by the exercise of reasonable care, diligence, inquiry, and investigation would have known said facts; that defendant did not pay over $10 per share for said stock, and that he owed $4,140 on said stock, for which amount he was liable to plaintiff.

The court ordered that the entire cause be referred to Frank A. Thompson, to try all the issues and to report all findings and proceedings to the court. A trial was had before said Frank A. Thompson, referee, who filed his report, recommending therein that plaintiff's said motion be sustained, and that execution be issued against the defendant to collect the sum of $3,680, said sum being the amount remaining unpaid on 46 shares of stock owned by defendant.

The first meeting of the board of directors met on March 23, 1912; and at said meeting E. E. Evans was elected president. On said day the corporation purchased from E. E. Evans all the rights of way, bonuses, subscription to stock, and services rendered by said Evans in the promotion of said railway, and the amounts expended by him; the purchase price paid being $2,000 cash and $100,000 in stock of the company. One thousand shares were issued to E. E. Evans, the stock certificate reciting on its face that the stock was full-paid, and nonassessable.

[1, 2] Unless the matters and things turned over to the corporation by Mr. Evans in payment of the 1,000 shares received by him were at the time reasonably worth in money the amount of the said stock's par value, the said shares issued to E. E. Evans were not full-paid. It is unnecessary to set out and Exceptions were filed to said report, which consider the evidence in this case regarding were overruled, the referee's report was con- the value of the matters and things turned firmed, plaintiff's motion was sustained, and over by Mr. Evans in payment of the stock judgment was entered against defendant for received. The appellant does not attack the $3,680, with interest, the total judgment | finding of the referee that 80 per cent. on

each share of stock received by Mr. Evans is [Evans first spoke to him about purchasing unpaid. Said finding is abundantly support- said stock he priced it to appellant at $10 ed by the evidence, and we adopt the same. per share. The stock was made out in apThe stock being unpaid, all persons who took pellant's name, and delivered to him at the said stock, with knowledge that said stock time he paid for the stock. Appellant did not was not fully paid, took it subject to the im- know Mr. Evans was president of the complied promise or obligation that they would pany. The stock was purchased at different be liable on said stock for the debts of the times. Appellant did not know anything corporation when it became insolvent to the about Mr. Evans' financial standing before extent of the difference between the par val- he purchased the stock. He did not make ue and the amount actually paid. Raleigh any particular inquiry, but heard that he Inv. Co. v. Bunker (Sup.) 227 S. W. loc. cit. would overcheck, and that he gave a note 126; Van Cleve v. Berkey, 143 Mo. loc. cit. and fell down on it. Mr. Evans did not in118, 44 S. W. 743, 42 L. R. A. 593; Shickle v. dorse any certificate of stock over to appelWatts, 94 Mo. 410, 7 S. W. 274; Meyer v. lant; all the certificates were made out in Mining & Milling Co., 192 Mo. loc. cit. 189, appellant's name. Mr. Evans told appellant, 90 S. W. 821; Berry v. Rood, 168 Mo. 332, "This is my stock, fully paid." He also told 67 S. W. 644; Construction Co. v. Central appellant that he got the stock from the comAmusement Co., 153 Mo. App. 195, 132 S. W. pany for services, but he did not say how 270; Skrainka v. Allen, 76 Mo. 385; Key- much stock he received. Appellant knew of stone Bridge Co. v. McCluney, 8 Mo. App. no property that Mr. Evans had at the time 496; Shepard v. Drake, 61 Mo. App. 140; he negotiated for said stock. Appellant was Brewing Ass'n v. Novelty Co., 120 Mo. App. not certain whether the conversation he 513, 97 S. W. 209; Bank v. Rockefeller, 195 Mo. 54, 93 S. W. 761; State ex rel. v. City of St. Louis, 161 Mo. 382, 61 S. W. 658; Erskine v. Loewenstein, 82 Mo. 304; Webster v. Upton, Assignee, 91 U. S. 65, 23 L. Ed. 384.

heard about Mr. Evans' overchecking and having an unpaid note outstanding was before or after he purchased the stock, but, according to his best knowledge, it was after the purchase of the stock.

The deposition of Mr. Black was introduced in evidence by the plaintiff. Mr. Black testified that he lived in Redmondville, Mo., and that a meeting was called in his neigh

[3] The controlling question in this case is whether the appellant, at the time he took the stock from Mr. Evans, had knowledge that the stock was not fully paid. The ref-borhood to boost the railroad. Mr. Evans eree's finding on this question was that appellant purchased said stock with knowledge that it was not fully paid.

The court having directed a reference in this case, and the referee having filed his report, it is our duty, under the provision of section 1444, Revised Statutes of Missouri, 1919, to review the evidence and the findings of fact of the referee and the trial court, and give such judgment as shall be conformable to the law on the evidence.

and Mr. Cureton spoke at the meeting. When the meeting was held does not appear. What was said by Mr. Evans at the meeting is not disclosed in the deposition. Mr. Cureton said at that meeting that he thought the railroad was a good proposition. The stock certificates delivered to appellant recited that the shares were full-paid and nonassessable. This was all the evidence bearing on the question whether the appellant had knowledge that the stock was not fully paid.

We do not think the evidence sufficient to justify the finding of the referee and the trial court that appellant had knowledge that the stock was unpaid at the time he purchased it. He did not acquire the stock as an original subscriber or taker. The fact that the stock was purchased from Mr. Evans at $10 a share was not such a circumstance as to have caused appellant to know that it had not been fully paid, or to charge him with inculpatory negligence in not knowing that it

[4] The evidence introduced on the issue under consideration is mainly found in the deposition of the appellant introduced in evidence by the plaintiff. The deposition was taken on the 16th day of August, 1916, and showed, in substance, that at that time the appellant was engaged in the mercantile business, resided in Poplar Bluff, Mo., and was 43 years old. He became acquainted with E. E. Evans about four years prior to the date of the taking of his deposition. He purchased 44 shares of stock in the Bismarck-Belle- was unpaid for; the best stock fluctuates at vue Valley & Western Railway Company from E. E. Eyans, and paid him $10 per share. About a month before he purchased the first stock Mr. Evans tried to sell him some stock. At that time it seems appellant lived at Bunker, Mo., and attended a meeting at Bunker, called for the purpose of boosting the railroad. The date of the meeting appellant did not know, but remembered that more than one meeting was held there. When Mr.

times. Nor is the fact that Mr. Evans told appellant that he got the stock from the company for his services sufficient to have caused appellant to know that Mr. Evans did not pay for the stock, in the absence of evidence showing knowledge by appellant of the amount of stock issued for the services and the nature of the services rendered. The stock represented on its face that it was fullpaid and nonassessable. Mr. Evans told him