The liability of the stockholder is a liability for the original cause of action, not affected in any wise by the judgment recovered against the corporation. Bird v. Calvert, 22 S. C. 297; Thompson, Liability of Stockholders, SS 31, 202, 321; Johnston v. South Western Railroad Bank, 3 Strobh. Eq. 263; Terry v. Martin, supra; Sullivan v. Sullivan Mfg. Co. 14 S. C. 494, and 20 S. C. 79; Planters Bank of Fairfield v. Bioingsville Cotton Mfg. Co. 10 Rich. L. 100; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473; Moss v. Oakley, 2 Hill, 265. See also Terry v. Tubman, 92 U. S. 156, 23 L. ed. 537. This statute provides only for the creditors of the company, that is those holding debts against it; the plaintiff whose claim must be considered only as an action for unliquidated damages, for the negligence of the company, is not protected by these provisions. Cooke v. Pearce, 23 S. C. 239. See also Thompson, Liability of Stockholders, § 53 -59; Taylor, Priv. Corp. $ 734; Bohn v. Brown, 33 Mich. 257; Lockhart v. Van Alstyne, 31 Mich. 76, 18 Am. Rep. 156; Whitney Arms Co. v. Barlow, 68 N. Y. 34; Victory Webb Printing & Folding Mach. Mfg. Co. v. Beecher, 26 Hun, 52; Doolittle v. Marsh, 11 Neb. 243; Cable v. McCune, 26 Mo. 371, 72 Am. Dec. 214; Carver v. Braintree Mfg. Co. 2 Story, C. C. 432; Heacock v. Sherman, 14 Wend. 58. Gary, J., delivered the opinion of the court: ready in existence under act of the assembly of this state, either general or special, passed since the adoption of the present constitution, or which may be at any time hereafter created under or by virtue of any act of assembly, general or special to wit: (a) That each stockholder in any such corporation shall be jointly and severally liable to the creditors thereof in an amount, besides the value of his share or shares therein, not exceeding five per cent of the par value of the share or shares held by such stockholders, at the time the demand of the creditor was created provided, further, that the liability inforced in this provision shall not apply to any corporation whatever in this state, in the charter of which a different liability shall have been, or shall be imposed." It will be observed that the constitution in section 4 says, "Dues from corporations shall be enforced;" and in section 5, "All general laws and special acts passed pursuant to this section shall make provision therein for fixing the personal liability of stockholders under proper limitations." These words are mandatory. It must be presumed that the legislature in passing the special act incorporating this company, and the General Act of Incorporation of 1886, intended to carry out the requirements of the constitution touching the liability of stockholders and that the language used is to be construed in connection with the words of the constitution bearing upon that subject. The questions submitted to the court below It is argued on the part of the defendants upon this case were as follows: (1) Are the that they are not liable under the act incorsaid J. Q. Marshall, W. H. Lyles, W. G. porating the company, because said act Childs, W. A. Clark, and James Woodrow simply fixes a limitation beyond which the liable to the said David R. Flenniken, and, liability of the stockholders shall not extend, if so, to what extent? (2) What judgment but does not make provision as to the amount or judgments, if any, should the said David for which they could be made liable. This R. Flenniken have against said parties? In objection, if tenable, would apply equally other words, can the shockholders of the Co-to the General Incorporation Act of 1886, belumbia Street Railway Company be made liable for an assessment of 10 per cent or any other amount, upon their holdings of stock, in satisfaction of a claim against that company for damages for personal injury by the negligence of the employés of the company? This claim, of course, is founded upon a tort. The provisions of the constitution relative to the liability of stockholders of corporations are found in article 12, sections 4, 5. Section 4 is as follows: "Dues from corporations shall be secured by such individual liability of the stockholders and other means as may be prescribed by law." Section 5 is as follows: "All general laws and special acts passed pursuant to this section shall make provisions therein for securing the personal liability of stockholders under proper limitations, etc. The reference in the act incorporating the Columbia Street Railway Company, to the liability of the stockholders, is found in section 4, which provides "that the personal liability of each stockholder shall not exceed 10 per cent, in addition to the amount of shares which he or she holds." Section 22 of the General Incorporation Act of 1886 (19 Stat. at L. 546) is as follows: "The following provisions shall constitute a part of the charter of every corporation, other than railroad and banking corporations, al cause it provides that the stockholders shall phraseology of the statute which creates the liability.' There is nothing in the constitution nor acts of the legislature making the liability of the stockholders of a penal nature, and therefore demanding a strict construction. They are to be interpreted by the ordinary rules of construction applicable to a remedial statute. In the case of Sullivan v. Sullivan Mfg. Co., 14 S. C. 499, Chief Justice McIver, in behalf of the court, says: "They both corporation and directors-have violated the same right of plaintiff to have payment of his debt, and the cause of action against both is, in fact, the same. The legal wrong done to the plaintiff is done alike by the directors and the corporation. The same remark will apply to the cause of action growing out of the account. It is urged, however, that the liability of the directors under the charter does not rest upon contract, but is for a tort, or in the nature of tort, while that of the corporation confessedly grows out of contract. We cannot concur in this view. The language of the act is that, on the contingencies named therein, the directors 'shall be jointly and severally liable for all debts,' etc. This language is not appropriate to the purpose of imposing a penalty, but rather conveys the idea that, on the contingencies mentioned, the directors shall be regarded as having assumed the payment of the debts of the company. It does not declare that they shall forfeit a certain sum of money, or the amount of their stock, or that they shall pay a certain penalty, but they shall become liable for the payment of the debts; that is, they shall assume the payment of them. When these defendants accepted the position of directors of a company organized under an act declaring that, in certain contingencies, they should become liable for the debts of the company, they must be regarded as having agreed that, if such contingencies should happen, they would pay the debts of the company." When the constitution and act incorporating the company are construed together, they impose a liability on the stockholders of 10 per cent in addition to the amount of the shares which they hold. Sutherland on Statutory Construction (page 422, § 334) says: "That which is implied in a statute is as much a part of it as that which is expressed." This brings us to a consideration of the meaning of the word "dues." There is no case in our Reports directly in point. The constitution of Ohio has words identical with those in article 12, section 4, of our Constitution. This provision of the Ohio constitution was construed in 1892 by the supreme court of that state in the case of Rider v. Fritchey, 49 Ohio St. 295, 15 L. R. A. 513. The argument of the court is convincing, and we rely principally on that case for the conclusion reached by us as to the meaning of the word "dues." The court in that case says: "The provision (sec. 3, art. 13) is: 'Dues from corporations shall be secured by Buch individual liability of the stockholders and other means as may be prescribed by law; but in all cases each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock.' The question turns upon the import of the word 'dues.' It has been contended that provisions creating individual liability on the part of the stockholders are in derogation of the common law, and are therefore to be construed strictly. Authori ties in support of this rule are not wanting, and in so far as such liability is attached by way of penalty for the omission of some act required by the statute, as in some of the states, it is probable that the weight of authority favors the proposition. But all concede that this is a remedial provision, and to hold that there must be applied to it the same test as if it were a penal law is to hold that all remedial laws must be so construed; for every remedial law must, of necessity, be in derogation of the common law. Where the provision is simply remedial, though it does impose an obligation that did not attach at common law, we see no reason to insist upon what is called a 'strict construction,' but believe that the ordinary rule, which requires the court to inquire simply as to the intent of the lawmakers, reading the provisions as they were intended to be read, will best attain the ends of justice. This leads us to look to the intent of the section quoted. Speaking in general terms, it must be manifest that the intent was to provide that those who derive advantage from the authority of the state, given by our incorporation laws, shall, at the same time, assume responsibil ity for the acts of the artificial creature which they have called into legal being, affecting the rights of others. Having in mind this general intent, and the provision being remedial, it should, we think, be construed with a view to remove the evil and extend the benefit proposed. It would seem to be the undoubted duty of the court to give the word 'dues,' as found in the section quoted, such construction as will secure the apparent object of the constitution makers in its adoption. Constitutions are necessarily couched in terse language, and we look there for the use of words in a board, comprehensive sense. It is difficult to see any reason why the framers of the constitution should intend to afford one who gives credit for goods or money to a corporation a right to demand compensation of the stockholders in case of insolvency, and deny a like right to one who intrusts it with the care of his person, as in the case of a passenger, or to one, even a stranger, who, without fault on his part, is injured by the negligence of the corporation's agents. It may well be asked, Are the rights of things more sacred than the rights of person? Is there any rule of public policy which would justify the protection of rights arising ex contractu which would not equally call for protection of rights arising ex delicto, or any claim for unliquidated damages?" We are of the opinion that the word "dues" is comprehensive enough in its meaning to include a demand against the stockholders arising ex delicto, and that the defendant stockholders are personally liable to the amount of 10 per cent on the shares held by them. It is the judgment of this court that the judg ment of the Circuit Court be reversed, and the ings as may be necessary to carry out the view cause remanded to the court of common pleas herein announced. for Richland county for such further proceed WISCONSIN SUPREME COURT. 1. An appraisal or award on the ques- 3. Insisting on the selection of an um- by an insurance company as to constitute an abandonment of the right to an arbitration which the company has demanded. 4. Arbitration as to the amount of a loss having failed in consequence of the appeared that the plaintiff gave due notice It was and the loss shall not become payable until sixty days after the notice, ascertainment, re-estimate, and satisfactory proofs of the loss herein required have been received by this company, including an award by appraisers, when appraisal has been required." charged in the complaint that the companies conspired together to obtain an unjust and and on the 8th of August, 1893, demanded unwarranted rebate of the plaintiffs' loss, the right of appraisement of the goods destroyed, under the arbitration clauses in the policies, the validity of which the plaintiff denied; that on that day a written submission was executed for that purpose, each party selecting an appraiser, the insurer selecting a resident of Chicago, unacquainted with the value of the goods and the market and the vicinage of the fire, namely, perverse conduct and want of good faith of an insurance company represented by an adjuster and an appraiser, the insured is not bound to en ter into a new one, or name another appraiser, even if the company is willing to name a new ap praiser on its part. (March 5, 1895.) APPEAL by defendant from a judgment County in favor of plaintiff in an action brought to recover the amount alleged to be due on a policy of fire insurance. Affirmed. Statement by Pinney, J.: at Oakfield, Fond du Lac County, Wis., lt an effort was made by the appraiser selected by the plaintiff to select an umpire, but the appraiser selected on the part of the companies refused to select an umpire, and to enter upon an appraisement, until he could This action was brought to recover for loss ascertain the wishes of the companies, and sustained by the plaintiff under the standard on the next day left Fond du Lac, and reinsurance policy of Wisconsin, issued by the turned to the vicinage of the fire or to the turned to Chicago, and had never since redefendant on the plaintiff's stock of goods, state, and that all attempts thereafter to obwhich were wholly destroyed by fire at Oak-tain the selection of an umpire had proved field, Wis., July 6, 1893, and claimed to be fruitless, by the refusal of the said appraiser of the value of $13,465.12. The plaintiff for the companies to agree upon a proper and held policies with six other companies, upon competent umpire, and would thereafter fail, the same goods, for various amounts, namely, unless the plaintiff would consent to an unTraders' Insurance Company, Hartford Fire Insurance Company, American Fire Insur- just rebate and compromise; that said apance Company, Merchants' Insurance Com: wholly subservient to their wishes and inpraiser appointed by the companies was pany, Fireman's Insurance Association of Philadelphia, Liverpool, London & Globe the conspiracy of the companies by so refus terests, and had been selected to carry out Insurance Company, such insurance amounting to appoint an umpire; that, having failed ing in all to $10,000. Actions were brought to get an unpire appointed, the plaintiff gave on each of the policies, October 8, 1893. It NOTE.-For a parallel case as to rejection of umpire from locality of loss, see Brock v. Dwelling House Ins. Co. (Mich.) 26 L. R. A. 623. See also 32 L. R. A. 172. notice to the companies of revocation of the submission of August 8, and that by reason of the premises the companies had waived I the benefit of said arbitration clause and sub mission. The defendant companies, respect-praisal clause in the standard policies now ively, each answered, in the actions against in use in this state. The policies in quesit, in substance setting up, by way of plea tion provide that loss or damage shall be in abatement, the said arbitration clause, ascertained or estimated by the assured and and the submission under it to arbitrate, of the company, or, in case of difference beAugust 8, to wit, the selection of George tween them, then by appraisers as therein Ferris and G. W. Weber as appraisers, and provided, and that "the loss shall not become that they had taken and subscribed the proper due and payable until sixty days oath, and that they were not able to agree after an award by appraisers, when appraisal upon the amount of loss or damage, and that has been required. This provision furno umpire had been chosen; that the amount nishes a speedy, convenient, and inexpensive of loss due the plaintiff had never been as- mode of ascertaining the loss or damages of certained, proposed, or awarded or returned the assured, if he is entitled to recover, and under the respective policies; that said ar- does not appear to be obnoxious to the obbitration proceedings were valid, in full jection that it is void as ousting the courts force, and undetermined when each of the of their rightful jurisdiction. Under it the actions was brought, and that, therefore, they right of recovery is left open, and the apwere each premature; that said stipulation praisal serves only to liquidate and deterand submission had not been waived, and mine the amount of the loss or damage. The nothing was due the plaintiff under the terms validity of such stipulations appears to be of the respective policies. The actions were beyond doubt. We think that the question all tried before the court at the same time, is perfectly well settled, and that it has been and submitted on the same evidence. The so considered ever since the case of Scott v. court found in cach case, in substance, among Avery, 5 H. L. Cas. 811; and that when parother things: (1) That the demand for an ties to a contract agree that money shall be appraisement was not made in good faith, paid when something else happens, aud that because of any real and substantial difference something else is that a third person named between the respective companies and the in it, or persons to be named as therein proplaintiff, but to prolong and postpone the vided, shall determine the amount, then the adjustment and payment of plaintiff's loss, cause of action does not arise until the and to coerce him to make rebate from his amount has been so ascertained or deterclaim, which could not otherwise be ob- mined, unless something has occurred which tained. (2) That the defendants, respect- may operate as a waiver of such precedent ively, through their appraiser, and with condition, or to dispense with its performtheir approval, wantonly and unreasonably ance, or that with fair and reasonable effort suspended the plaintiff's claim, and refused performance of it cannot be obtained. The and neglected to appraise the loss, or make rule is stated by Jessel, M. R., in Dawson v. any attempt to do so, but hung the same up Fitzgerald, L. R. 1 Exch. Div. 257, 260, in indefinitely, to prolong and postpone the ad- brief, to be this: "There are two cases justment and payment of the plaintiff's loss where such a plea as the present is successand damages until he should be coerced into ful: First, where the action can only be allowing an unjust rebate. (3) That no ac-brought for the sum named by the arbitrator; tion was taken by the companies, respect-secondly, where it is agreed that no action ively, within 60 days after receiving proofs shall be brought until there has been an arof the plaintiff's loss, nor prior to the com- bitration, or that the arbitration shall be a mencement of the actions, teuding towards an condition precedent to the right of action. appraisement and adjustment of plaintiff's In all other cases where there is-First, a loss, by arbitration or otherwise, or showing | covenant to pay; and, secondly, a covenant any purpose or intent to do so; that the plain-, to refer, -the covenants are distinct and coltiff for that reason, October 3, 1893, revoked lateral, and the plaintiff may sue on the first, the agreement to arbitrate, signed August 8, leaving the defendant to bring an action for 1893, and gave notice thereof to the respect- not referring," etc. Here the covenant to ive companies before bringing the actions. pay is, by necessary implication, conditioned (4) That the cash value of the plaintiff's upon the appraisal, if properly claimed, and property covered by the policies at the time the plaintiff is in no position to claim anyof the fire was $13,465. 12. Judgment was thing until an appraisal has been made, given against each of the defendants for the waived, or in some manner legally dispensed amount of its policy, with interest from the with. Elliott v. Royal Exchange Assur. Co. date of the action, and each of them appealed of London, L. R. 2 Exch. 240. The quesfrom the judgment against it, and the ap- tions to be considered are "whether an ar peals were heard together upon the same rec-bitration or award is necessary before a comord. plete cause of action arises, or is made a condition precedent to an action, or whether Messrs. Barbers & Beglinger for appel-the agreement to refer disputes is a collateral lants. and independent_one. Collins v. Locke, 4 Messrs. Duffy & McCrory and E. S. App. Cas. 689; Edwards v. Aberayron Mut. Bragg for respondent. Ship Ins. Soc. L. R. 1 Q. B. Div. 592, 598. We think that the stipulation in question is a valid and reasonable one, and not open to the objection urged against it that it ousts 1. These appeals involve questions of con- the jurisdiction of the courts, as it leaves siderable importance in respect to the con- the general question of liability, if any exstruction and effect to be given to the apists, to be judicially determined. The case Pinney, J., delivered the opinion of the court: of Hamilton v. Liverpool & L. & G. Ins. Co. | purchased the stock, that of a variety store of Great Britain, 136 U. S. 242, 254, 34 L. in a country village, about six months beed. 419, 423, seems decisive. Delaware & fore, of one Russell, and had paid a consid H. Canal Co. v. Pennsylvania Coal Co. 50 erable, indeed the greater, part of the price N. Y. 250; Reed v. Washington Fire & Ma. in Iowa lands. He had been allowed quite rine Ins. Co. 138 Mass. 572, 576; Hudson v. a considerable discount on the goods, because McCartney, 33 Wis. 331. In such cases a some were shelfworn, and a further discount party may not of his own mere option or of about $1,100 was insisted on and obtained volition revoke the arbitration or submission by the plaintiff. Berne, the adjuster, inclause, any more than any other provision sisted on a considerable discount on the goods of the contract. A contrary view, however, because they had been paid for by the plainobtains in Pennsylvania, in cases where the tiff in land; and under this claim the dif person or persons who are to make the ap- ference on insured value, at the outside, praisal or award are not named in the con- amounted to about $700, and upon a fair tract, but are to be chosen thereafter by the computation did not seem to be more than parties. Mentz v. Armenia F. Ins. Co. 79 $400. Berne testified that "the difference was Pa. 478, 21 Am. Rep. 80; Commercial Union as to the value of the stock of goods paid for Assur. Co. of London v. Hocking, 115 Pa. by real estate trade, -that was the point;" 414. But we are unable to see any substan- that they had not been bought for cash. tial ground for the distinction. Upon the The plaintiff claimed the full face of the other hand, the case of Hamilton v. Home policies, and he testified that Berne told him, Ins. Co. of New York, 137 U. S. 370, 34 on this occasion, that "the only way he could L. ed. 708, is one where the provision that get anything out of me was to attack the an appraisal should be made was not either original invoices; that he traded land for it, expressly or by necessary implication a con- and did not pay cash, and he was not going dition precedent to the obligation to pay, to allow cash price for it." Berne denies but where the stipulation for an appraisal the particular form of expression, "make was held to be independent and collateral, anything out of you," but admits that he and the assured entitled to sue without an might have said the only way he could get appraisal; and the principal cases on this along with him was to attack the inventory point are here collected. The cases relied of Russell. Berne then notified the plain on by the respondent's counsel fall within tiff he should demand an appraisal. August the category of Hamilton v. Liverpool & L. 8 the parties met at Fond du Lac, by ap& G. Ins. Co. of Great Britain, and Reed pointment, Berne bringing with him from v. Washington Fire & Marine Ins. Co., su-Chicago one Weber, of that city, whom he pra; Roe v. Williams, 97 Mass. 165; Hood named as appraiser on behalf of the comv. Hartshorn, 100 Mass. 121, 1 Am. Rep. panies, the plaintiff naming one Ferris, who 89; Nute v. Hamilton Mut. Ins. Co. 6 Gray, acted as appraiser when he purchased of 181; Stephenson v. Piscataqua Fire & Ma Russell, and the submission was signed. rine Ins. Co. 54 Me. 70. The doctrine laid The evidence is clear that no attempt was down in this state in Hudson v. McCart-ever made by the appraisers to agree on an ney has not been departed from or materially award; that they at once failed to agree in qualified. In Phoenix Ins. Co. v. Badger, the choice of an umpire. Ferris proposed 53 Wis. 283, and Vangindertaelen v. Phoenix the names of six business men, conceded to Ins. Co. of Brooklyn, 82 Wis. 112, where there were provisions, in substance, as in these cases, no arbitration was demanded. In Canfield v. Watertown F. Ins. Co., 55 Wis. 419, the policy did not provide, either expressly or by necessary implication, that an award should be a condition to the right to sue; and the same is true of the contract in Oakwood Retreat Asso. v. Rathborne, 65 Wis. 177. We hold, therefore, that, where an appraisal has been properly demanded, an appraisal or award on the question of the amount of loss or damage is made by these policies, by necessary implication, a condition precedent to the right of the assured to sue, and he cannot maintain his action unless the condition is waived or in some way dispensed with; and that he has in such case no right, at his mere option or volition, to revoke the arbitration clause in the policy or a submission under it. be competent and of good character, residing in Fond du Lac county. Weber did not name any one, except three parties living in Chicago. He said he wanted to go to Chicago, though he stated that, if Ferris desired, he would stay and get through with the matter; and that about that time a boy came to the door, and called out: "Mr. Berne says, if you are going to take that train, you will have to start now;" and he took the list of names, and never returned again to meet Ferris in relation to the business. Weber testified that he thought the parties named by Ferris "too much befriended" to the plaintiff, but "did not find in looking them up that which indicated friendship;" that he made up his mind "that they were not the men we wanted;" that he did not find out anything against their integrity; that he "objected to these six men all on general principles;" "I rejected all of them;" that he did not offer to name any one in Fond du Lac, nor any country merchant; 2. About two weeks after the fire, July 20th, a Mr. Berne, adjuster for the Traders' Insurance Company, and then representing I stayed by Chicago." After Berne some of the other companies, called on the and Weber left Fond du Lac, correspondence plaintiff, and examined his books and pa occurred between Ferris and Weber, and bepers, and made inquiries in regard to the tween the plaintiff and Berne. Ferris deloss, and he soon afterwards came to repre-clined to accept either of the three Chicago sent the other companies. The plaintiff had parties named by Weber, August 15th, and |