49 Mo. App. 240 | Mo. Ct. App. | 1892
This is an action upon a contract of subscription. The plaintiffs agreed in writing with the defendant and a number of other subscribers that, in consideration of $5,800, subscribed for and to be paid to them, they would erect at Salem, Missouri, a butter and cheese factory of certain dimensions and capacity. By the terms of the contract the subscribers agreed to accept the building as soon as completed, and to pay the amount set opposite their respective names. The subscription paper further provided that as soon as
The suit was brought before a justice, where the plaintiffs had judgment. Upon the trial in the circuit court, the plaintiffs introduced the subscription paper .and proved the defendant’s signature thereto for the .amount stated. They also proved that the entire .amount of $5,800 had been subscribed for, and that ■.they had completed the building according to the terms of the subscription paper, and turned it over to the corporation formed by the subscribers, receiving in return the entire amount of subscription, less the $100 subscribed for by the defendant.
The plaintiffs also gave evidence tending to show that, when the corporation was formed, the defendant was requested to subscribe the articles as one of the corporators, but declined to do so on the ground that he had never signed the contract of subscription. As it was necessary under the laws of the state that some person should subscribe for this $100 of stock to secure an incorporation in the amount mentioned in the contract of subscription, another person did subscribe therefor, but the stock issued to him was tendered to the defendant upon the trial.
Upon this evidence the court declared as a matter of law that the plaintiffs could not recover, and rendered judgment for the defendant. This is the error complained. of.
As we have not the benefit of any brief from the respondent, we are not advised of his theory, or the theory of the court. We can conceive of no theory
We mention these facts, because' in the absence of any other explanation we presume the court nonsuited the plaintiffs on the ground that some one else had subscribed with the knowledge of the plaintiffs for the $100 of stock to which defendant would have been entitled, had he paid his subscription, and that such fact appeared by plaintiffs’ evidence. While that fact amounts to no legal defénse whatever, it is not even entitled to an equitable consideration, because the stock certificate was tendered to the defendant upon the trial, removing any vestige of ground for complaint on his part.
In view of a retrial of the cause, we direct the attention of the trial court to James v. Clough, supra, where
the judgment is reversed and the cause remanded.