The defendant cannot demur upon the ground that there are too many plaintiffs or defendants, but may do so if the petition shows that others should be joined. It must be a defect and not a misjoinder. Ulness v. Dunnell, 61 N.D. 95, 237 N.W. 208. NUESSLE, J.
The Supreme Court of North Dakota has held that a dividend can not rightfully be declared by a corporation except out of the profits earned by it, and that this principle is embodied in the North Dakota statutes above referred to. Ulness v. Dunnell, 61 N.D. 95, 237 N.W. 208. Similar statutory provisions were in existence when petitioner was incorporated. The question for determination is whether, within the purview of Section 26(c)(1) of the Revenue Act of 1936, petitioner's charter, including as it doubtless does the North Dakota statutes, constituted a "written contract executed by the corporation."
His rights are not superior to the rights of any other stockholder in the corporation. We have already shown that a solvent corporation cannot declare and pay dividends out of its capital stock so as to render itself insolvent (Ulness v. Dunnell, ante 95, 237 N.W. 208) and if a solvent corporation cannot do this, how may an inolvent corporation pay one stockholder for his stock? The plaintiff is co-operative when he desires a loan and needs the assistance of his neighbors; but becomes extremely individualistic when the loan is paid.