121 N.W. 73 | N.D. | 1909
The Soo Lignite Coal Company is a corporation organized under the laws of the state of South Dakota, and was engaged in the business of operating a coal mine in Pennington, in this state. The defendants Ball, Hollister & Welton were officers of said corporation during all the times covered by .the transactions hereinafter set forth. The plaintiff was during all the time mentioned engaged in the business of selling coal in the city of Fargo. In February, 1904, he made a contract with said Soo Lignite Coal Company, by which he was to take 1,000 shares of stock in said company at the agreed price of $1,000, and he was also to receive the exclusive agency for the selling of that company’s coal in Fargo, and -he had a further right under said contract to receive each year 1,000 tons of the coal mined by said company at a reduced cost, the same to be shipped by the company whenever ordered by the plaintiff. Under the terms of said contract plaintiff was to execute to the said coal company 10 notes for the sum of $100 each, to be due at stated .times therein set forth, and the plaintiff did execute and deliver to said company the 10 notes as provided for by the con
The action came to trial before a jury, and at the close of the testimony the plaintiff and each of the defendants moved for a directed verdict. The court denied the defendants’ motion, and, in pursuance of a direction of a verdict in -plaintiff’s favor, the jury brought in a verdict against the defendants for the sum of $1,091.89. testimony the plaintiff and each of the defendants moved for a judgment notwithstanding the verdict, and for a new trial, if such motion for judgment was denied. These motions were severally denied by the court, and the defendants appealed from said order and from the judgment entered on the verdict of the jury. The ground on which the trial court directed a verdict against all the defendants was that the defendant coal company never complied with any of the provisions of sections 4463, 4695-4697, Rev. Codes 1905. These sections pertain to the filing of a copy of the charter of corpora
Nor is it necessary to decide the contention of the defendants which is disputed by the plaintiff that the Statute should be strictly construed. Appellants’ contention is that the statute imposes a liability upon stockholders and officers now existing under the common law, and that- a strict construction only should be given to it. Re
The liability of the officers must be measured by the terms of the statute as such liability is created solely by the statute. The precise question before us is: What was the status of the contract and of the parties thereto after plaintiff had rescinded it ? The recission of it wiped out the contract, so far as basing any affirmative action on it relating to its enforcement, or for damages for its breach. It destroyed all its vitality, and the relation of the parties thereto as an express contract was the same as though it never had been entered into. This much is conceded by both parties. Whether the conceded obligation of the defendant company to restore everything of value which had been received by it under the contract before it was rescinded can now be enforced against the officers of the company is the disputed issue in this case. In other words, does section 4698, supra, make officers of a foreign corporation not complying with our statute pertaining to their right to transact business in this state liable on the implied contracts of the corporation? The language of the section is that they are liable “on any and all contracts of the corporation.” This language is broad enough to include contracts implied -by law. We think it would be failing to give effect to the language of the section to restrict its application to express contracts. The rescission of the express contract does not effect rights growing out of it 'thereafter as implied obligations on the part oí the defendant company. Contracts are classified as express or implied by the statute of this state, and section 4698 in effect makes officers liable upon a -breach of either by the corporation. Stress is laid upon the use of the word “-made” in said section; and ilt is argued that express contracts only are made or can be “made.” It is true that implied contracts are not entered into by express words, but are manifested by conduct of the parties; but they are made by the parties as a matter of' law with equal effect as though the terms are stated expressly. No cases are cited by either party which are in point as to the meaning and construction of this section, and we have failed to find any. Appellant relies on Dusenbury v. Spier, 77
The judgment is affirmed.